Per- and polyfluoroalkyl substances (PFAS) are a class of several thousand chemically related compounds. They comprise a major category of what are known as “emerging contaminants.”
PFAS contaminants have seen a groundswell of attention recently by both regulatory agencies and the public. This is due to the recognition of their potentially deleterious effects on human health and the environment. Increasing testing for these chemicals in the environment is also revealing that their presence in the ground and water is far more widespread than was previously known or recognized. For reasons related to their chemical composition, PFAS compounds also are proving to be some of the most difficult contaminants to remove from soil and water.
Prior to the recent revelations, for decades PFAS compounds were highly prized for their versatility and utility, ranging from their application in many consumer goods and products (e.g., Teflon®, Gore-Tex®, dental floss, etc.) to their beneficial use in industrial and commercial applications, such as in Class B firefighting foams.
What made PFAS compounds so useful was their chemical stability. They tend to remain the same and they do not dissipate or break down into other less harmful chemicals over time. As useful as they are, however, research over the last decade has shown that at least some PFAS compounds are quite toxic to humans. What’s more, they tend to bioaccumulate in humans over time. As a result, whatever hazards they may present to humans who ingest or are exposed to PFAS chemicals generally do not diminish, but may actually get worse, as people get older.
Documented health risks include developmental effects in fetuses, likely impacts to thyroid, liver, kidneys, hormone levels and the immune system, and a possible risk for certain cancers. Further, many PFAS compounds are water-soluble and move rapidly through groundwater. Their chief virtue as products – their overall chemical stability – thus only makes them more difficult to get rid of once they have entered the environment because they do not easily biodegrade or break down chemically after their release.
There are literally thousands of PFAS compounds. To date only a handful have been researched. This is an area of concern for anyone who knows or suspects that he/she may bear responsibility for PFAS contamination.
It is possible that many PFAS substances yet to be tested for toxicity may turn out to be even more toxic than the substances already studied.
Meanwhile, regulators around the country continue to struggle with how to determine the level of human exposure to PFAS materials in the environment that are deemed to be “safe”. The current USEPA national standard for drinking water is only advisory. Many toxicologists, epidemiologists, physicians, risk assessors, industrial hygienists, and other experts believe it must be much lower. As a result, states all around the country have been adopting much more stringent cleanup requirements for PFAS contamination than the present national advisory only standard. This only adds to the complexities and challenges faced by anybody required to deal with a PFAS problem – whether as the party bearing liability to remediate the contamination or as an actual or potential victim who may have been exposed to these chemicals from a release of them into the environment.
To elaborate, the adoption of non-uniform, and sometimes contradictory, exposure standards for PFAS from one state to another only adds to the overall regulatory burden. It also can make it difficult to require those responsible for a contaminant release to remediate to a desired result. This is especially true when the federal government itself is responsible for PFAS release into the environment, as is the case with literally hundreds of present or former military bases around the country. Many have PFAS issues due to the widespread usage of PFAS containing firefighting foam at those facilities.
Because of the above, many current and former property owners now face potentially complicated and expensive regulatory, liability, remediation and litigation environments. These include current and former owners and operators of airports, properties that are or were manufacturing or industrial facilities (including brownfields), properties that were once military bases, and other locations in which PFAS products like firefighting foam may have been historically used. It also includes water companies, municipalities, transportation authorities, and other persons or entities who may have only used or encountered PFAS materials as products but did not manufacture them. At many of these facilities, the use of PFAS containing firefighting foam was mandated by regulators for decades.
While some owners and operators of such facilities already have awareness of the issues and have plans to address them, others have not even thought about it. It is the later category of parties who are most at risk. The PFAS problem eventually could overwhelm them if they do not act early and proactively.
For any person or entity who now or in the future may be facing potential liability for PFAS contamination, it is essential to be counseled by a team of qualified and experienced practitioners who fully understand and can deal with all of the legal and practical risks.
Should you have any questions on PFAS, including the current regulatory status or how best to handle public and private inquiries from the press, or need legal help in connection with litigation involving PFAS, please contact a member of our Environmental Law Department specializing in PFAS listed below.
- Northeast Chapter AAAE()
- Flaster Greenberg and Langan Engineering()