The PFAS Matrix: Potential Risks, Corrective Actions, and Regulatory Compliance

Per- and polyfluoroalkyl substances (PFAS), often dubbed “forever chemicals,” are increasingly scrutinized for their environmental persistence and possible health risks. Businesses that manufacture, use, or dispose of PFAS face a growing web of regulations and potential liability for contamination. This PFAS matrix explores considerations for companies to review in coordination with legal counsel in efforts to proactively assess and address PFAS concerns, aiming for both regulatory compliance and minimized legal exposure.

PFAS Matrix to Unveiling Potential Risks

1. Internal Inventory and Risk Assessment

  • Material Safety Data Sheets (MSDS) Review: Scrutinize supplier-provided MSDS sheets for products containing PFAS or related compounds. This initial step identifies potential PFAS usage within your operations.
  • Process Mapping: Develop a comprehensive map of all processes that utilize or potentially generate PFAS. Include raw materials, production processes, waste streams, and final products. This map helps pinpoint areas where PFAS exposure might occur.
  • Environmental Audits: Consider engaging qualified environmental professionals to conduct site audits, focusing on potential PFAS contamination in air, water, and soil. Early detection allows for timely remediation and reduces future liability.
  • Supply Chain Analysis: Investigate the PFAS content in materials procured from upstream suppliers. Engage with suppliers to understand their PFAS usage and the potential for contamination in their products.

2. Analyzing Regulatory Landscape and Compliance

  • Federal Regulations: Stay updated on EPA’s evolving PFAS Strategic Roadmap, which outlines potential federal regulations for PFAS manufacturing, use, and disposal. Proactive adherence minimizes the risk of non-compliance penalties.
  • State-Specific Regulations: Many states have enacted or are considering stricter PFAS regulations, often exceeding federal standards. Compiling a comprehensive list of relevant state regulations for your locations is crucial.
  • Industry-Specific Regulations: Certain industries, such as textiles, firefighting foams, and food packaging, may have specific PFAS regulations. Identifying and complying with these additional regulations is critical.

3. Achieving Regulatory Compliance and Mitigation Strategies

  • Implementing a PFAS Management Plan: Develop a comprehensive plan outlining strategies to minimize PFAS usage, ensure safe handling and disposal, and track compliance with regulations.
  • Investing in PFAS-Free Alternatives: Explore and implement alternatives to PFAS-containing materials whenever possible. This reduces the risk of future contamination and potential liability.
  • Employee Training and Awareness: Educate employees about the risks associated with PFAS, proper handling procedures, and emergency response protocols. This fosters a culture of safe handling and minimizes accidental releases.
  • Regular Monitoring and Reporting: Establish a program for regular monitoring of PFAS emissions and potential contamination at your facilities. Develop a system for accurate and timely reporting to regulatory agencies as required.

4. Retain Legal Counsel

Partnering with an attorney experienced in environmental law and PFAS litigation is highly recommended. Legal counsel can:

Gather Information on the Facility’s Operations:

  • Review historical records on manufacturing processes, including materials used, waste disposal practices, and any spills or accidents involving PFAS-containing materials.
  • Identify the types of PFAS chemicals used or potentially used at the facility, including current and past operations.
  • Obtain information on the facility’s wastewater treatment system and discharge practices.
  • Develop a timeline of the facility’s operations, focusing on periods when PFAS use was most prominent.

Assess Potential Exposure Pathways:

  • Identify potential routes of PFAS migration from the facility, including air emissions, water discharges, and soil contamination.
  • Evaluate the surrounding environment, including soil, water, and air quality testing data for potential PFAS contamination.
  • Consider the proximity of residential areas, schools, and other sensitive receptors to the facility.

Identify Potential Legal Issues:

  • Research relevant federal and state regulations regarding PFAS contamination, such as the Safe Drinking Water Act (SDWA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), Toxic Substances Control Act (TSCA), Clean Water Act (CWA), and the Clean Air Act (CAA).
  • Analyze potential lawsuits from individuals alleging PFAS exposure due to the facility’s operations.
  • Evaluate potential claims from neighboring property owners for potential PFAS contamination of their land or water.
  • Consider the possibility of government enforcement actions for potential PFAS contamination violations.

Conduct Environmental Testing:

  • Recommend PFAS testing of the facility’s air emissions, water discharges, soil, and products, if applicable.
  • Advise the client on the appropriate testing protocols and laboratories for PFAS analysis.
  • Ensure the testing is comprehensive and follows industry standards.

Develop a Risk Management Plan:

  • Based on the findings, develop a plan to address potential PFAS exposure risks.
  • This may involve implementing new engineering controls to reduce potential PFAS emissions or remediating contaminated soil and water.
  • The plan should also include strategies for monitoring PFAS levels and reporting any exceedances to regulatory authorities.

Proactive Industry-Wide Considerations:

  • Stay up-to-date on the latest scientific research regarding PFAS and its health effects.
  • Seek consultation with environmental engineers and other experts as needed.
  • Maintain confidentiality of client information throughout the process.
  • Review contracts and insurance coverage. Assess potential PFAS-related liabilities in contracts with suppliers and customers. Evaluate existing insurance policies for coverage in case of PFAS contamination events.
  • Develop strategies for potential litigation. Prepare your company to address potential lawsuits from affected communities or regulatory enforcement actions. This includes gathering relevant documentation and establishing clear communication protocols.

The Takeaway

Navigating the PFAS landscape requires a proactive approach. By examining the areas discussed above, companies can assess potential missteps, work towards regulatory compliance, and attempt to minimize legal and financial risks that may be associated with PFAS. Remember, early detection, informed decision-making, and a commitment to environmental responsibility are key to staying ahead of the curve in the ever-evolving world of PFAS regulations.