Managing PFAS risk from all angles
Savvy real estate investors, private equity sponsors, industrial and manufacturing firms, insurers, and lenders are all paying attention to the risks that Per- and polyfluoroalkyl substances (PFAS) present for good reason. What was considered an emerging contaminant just a few short years ago is now a mainstream phenomenon as the harmful effects of PFAS exposure and associated business risks are becoming more well understood.
What’s the big deal with PFAS?
As expected, regulatory standards are being promulgated on a parallel track. Recently the USEPA released four drinking water health advisories for PFAS compounds. These health advisories, based on the most recent exposure data and considering a lifetime exposure, essentially indicate that for some PFAS compounds there is no “safe” level.
Specifically, the drinking water health advisory levels were lowered from the previous 70 parts-per-trillion (ppt) for combined PFOA and PFOS to 0.004 ppt for PFOA and 0.02 ppt for PFOS. These health advisory levels are essentially zero, and are below most available analytical detection limits; therefore, EPA considers the “safe” level of exposure (through drinking water) to be practically zero! Risk mitigation and remediation are challenging at these levels and require collaboration between regulators and remediators to develop achievable solutions. Many states have gotten out ahead of formal federal regulation and have established (or are in the process of establishing) their own drinking water regulations for this class of compounds.
Further, it is anticipated that by the end of 2022 that two of the most common PFAS compounds (PFOA and PFOS) will gain hazardous substance designation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This designation has cradle-to-grave liability implications, meaning that any party responsible for the use and/or disposal of PFAS that result in a release to the environment (e.g. spills, wastewater generation, air emissions/dispersion, landfill deposits) could be on the hook as a potentially responsible party (PRP) for clean-up liability. Because remediation technology is still in development, remediation remains challenging and expensive.
It is of paramount importance for affected stakeholders to be able to make informed business decisions when there are PFAS implications in an investment, lending, insurance, or operational scenario. RPS has the expertise and breadth of experience to partner with stakeholders to investigate known and potential releases, develop accurate and pragmatic remedial cost opinions, and execute remedial strategies.
Background: The ubiquity of PFAS
While PFAS compounds are generally considered to be emerging contaminants, the first compounds in the PFAS class were initially synthesized as early as the 1930s, and have been used extensively by industry since the late 1940s, when 3M began the mass production of perfluorooctanoic acid (PFOA), used as a friction reducing or non-stick coating. Production of perfluorooctane sulfonate (PFOS) followed closely in the 1950s, used as a waterproofing and/or stain resistant coating, then in Aqueous Film Forming Foam (AFFF) for firefighting. Just these few uses have put PFAS compounds into virtually every facet of modern life.
PFAS compounds are a large group of synthetic fluorinated organic chemicals such as PFOA and PFOS, but the class also includes newer “replacement” PFAS formulations such as GenX chemicals, and potentially thousands of other compounds. The properties that make PFAS compounds so useful across these various industries and applications are what earn the “forever chemical” moniker for this class of compounds: their strong carbon-fluorine bonds are extremely stable in most environments and will not readily degrade. Due to their unique properties – PFAS compounds can be oil and/or water repellent, friction reducing (non-stick), temperature resistant, and water soluble, among other properties - PFAS have found use in a variety of industrial processes and consumer products including coatings for textiles and paper, waxes and cleaners, non-stick coatings (such as in cookware), protective coatings, paints, and as AFFF.
PFAS have also been used extensively in industrial processes where their unique properties facilitate or improve a process. For example, they are used as an additive to plating chemicals to improve quality of the finished product, and later to reduce plating bath mist emissions. PFAS compounds have found applications in chemical processing, automotive and aerospace component production, electronics and semiconductors, packaging, and many others. Unfortunately, in many applications, PFAS ultimately ends up in a waste stream (rather than the final product) that may be released to the environment at some point such as through direct process air emissions, wastewater discharges (PFAS compounds generally escape WWTP treatments), or disposal of spent chemicals/products. Once in the environment, PFAS can behave in unique ways compared to classic contaminants, due to their properties that vary with the surroundings and their strongly repellent end. For example, risk of vapor intrusion is highly dependent on the pH properties of the surrounding groundwater.
Human health studies dating back as early as the 1970s have shown that, due to their persistent “forever chemical” nature, most people in the United States have been exposed to and carry some level of PFAS in their blood serum. As elucidated by the recent USEPA health advisories, there is growing evidence that exposure to even extremely low levels of some PFAS compounds may lead to adverse health effects. Therefore, the characterization and remediation of PFAS compounds in the environment has become a primary focus of Federal and State regulators in the US and internationally as well.
Managing risk from all angles
RPS has experience with emerging contaminants, including PFAS, providing comprehensive environmental services from the initial identification of potential PFAS use at a facility (current and/or historical), to soil and groundwater investigation to evaluate potential PFAS impacts, to assessment and implementation of remediation.
Our Environmental Risk professionals understand the unique challenges associated with these and other emerging contaminants, including sampling protocols, required analytes for this broad class of compounds, and analytical methods and capabilities. We navigate the unique world of PFAS movement in the environment, which is made challenging by the ubiquity of PFAS, cross-media transport phenomena, and rapidly changing science and regulatory context.
Furthermore, RPS is experienced in estimating potential liabilities associated with emerging contaminant impact matters, and we routinely guide clients through the implications PFAS might have on a real-estate or M&A transaction. While PFAS are, and will continue to be, a “big deal,” RPS has the experience and expertise to be a trusted PFAS advisor, making the “big deal” a manageable issue.
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