Nicole TK Moore, REPA

PFAS, or per- and polyfluoroalkyl substances are a group of synthetic organic molecules, primarily consisting of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate acid (PFOS). This group of molecules is useful for a wide range of manufacturing and industrial applications due to its resistance to heat, water and oil, and inability to biodegrade easily. As a result, PFAS compounds have become some of the most widely used class of chemicals in the world — used for manufacturing a wide range of consumer products including (but not limited to) cookware such as Teflon pans, pizza boxes and food wrappers, stain and water repellents, polishes, waxes, paints, carpeting and furniture.

PFAS has also been used as a coating and water-resistant treatment for many industrial and manufacturing products, including semi-conductors, medical devices and as a metal plating bath. One of their main uses has been in aqueous film forming foams (AFFF) used for firefighting, and at military installations and commercial airports. Use of PFAS in fire-retardant foams has been one of the most prolific vectors of widespread contamination at water sources.

Certain PFAS compounds are now banned from manufacturing in the United States, while others are under state-specific evaluation for use and production or have been voluntarily recalled.

PFAS Exposure, Contamination, and Health Effects: A Growing Widespread Concern

The potential health effects from PFAS in humans is not yet well-understood by scientists. However, studies have indicated that high levels of exposure can result in functional changes in the liver, thyroid and pancreas. The Centers for Disease Control has issued warnings that PFAS may impact growth and development, reproduction, thyroid function, immunity and higher rates of certain cancers.

PFAS exposure can come from food packaged in PFAS-containing materials, commercial household products, facilities or industries where PFAS is used or manufactured, drinking water (typically associated with proximity to a PFAS facility), and living organisms that have accumulated PFAS. Water contamination from PFAS is currently a large health concern because these chemicals are highly soluble and cannot be removed by standard wastewater treatment methods or most home water filters.

Studies by the Social Science Environmental Health Research Institute at Northeastern University has documented PFAS contamination at 94 sites in 22 states (so far) and have provided an interactive site tracker to monitor future results. An analysis by the Environmental Working Group (EWG) of EPA drinking water sampling from 2013-2016 showed that 194 systems serving 16 million people have been impacted by PFAS so far.

Current Regulatory Guidelines and Due Diligence Standards

The United States Environmental Protection Agency (EPA) has not yet established current enforceable standards for healthy levels of PFOS and PFOA in drinking water, nor have they issued guidance on assessments or remediation for impacted properties. However, in 2016, the EPA released a Drinking Water Health Advisory (HA) of 70 parts-per-trillion (ppt) for either PFOA or PFOS, or when both are found in a combined concentration. Additionally, the agency has indicated that it is committed to issuing future regulations, which may include a more stringent Maximum Contaminant Level (MCL) for PFAS in both water and soil, as well as contaminated site removal actions.

Nevertheless, in absence of unified Federal regulatory guidance, some heavily impacted states have begun taking rudimentary steps to address due diligence and cleanup recommendations.

Massachusetts In June of 2018, the Massachusetts Department of Environmental Protection (MassDEP) issued a drinking water Office of Research and Standards Guideline (ORSG) similar to the EPA’s recommendations of 70 ppt, but included three additional PFAS chemicals: perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), and perfluoroheptanoic acid (PFHpA). MassDEP also provided guidelines for consumers and public water suppliers, as well as future considerations for health assessments and contaminant risks.

The MassDEP Bureau of Waste Site Cleanup also established that PFAS may be considered a “release” under the Massachusetts Contingency Plan definition. Furthermore, PFAS is considered a hazardous material and subject to Chapter 21E enforcement, however it only requires notification if it is detected at concentrations that result in an Imminent Hazard.

MassDEP has provided PFAS sampling and analysis guidance for licensed site professionals (LSPs), including recommended sites to sample where concentration of PFAS is more likely, how to sample for PFAS, sample collection methods and sequence, and proper field equipment.

Michigan A new report released by the The Environmental Working Group shows that Michigan has 192 sites contaminated with per- and polyfluoroalkyl substances (PFAS), by far the most in the country. Michigan Governor Gretchen Whitmer has directed the Michigan PFAS Action Response Team to form a science advisory workgroup to recommend MCLs by summer of 2019, and to fast-track Michigan Department of Environment, Great Lakes, and Energy (EGLE) enforceable standards by October of 2019.

In the meantime, the State of Michigan has established a website to keep track of newly discovered PFAS sites across the state. In 2018, EGLE’s Remediation and Redevelopment Division (RRD) established cleanup criteria for groundwater used as drinking water of 70 ppt of PFOA and/or PFOS, individually or combined.

California On March 6, 2019, the California State Water Resources Control Board announced it will soon issue orders to owners and operators of more than a thousand facilities in California requiring environmental investigation and sampling for PFAS. Phase 1 of the plan will target airports and landfills, while Phases 2 and 3 will include refineries, bulk terminals, fire training facilities, wildfire areas, manufacturers, wastewater plants, and domestic wells. A current bill in the California State Senate is proposing a requirement that water providers notify their customers if they detect a class of chemicals called PFAS in drinking water.

What Should Property Owners and Investors Do?

As scientific knowledge and state and federal guidelines evolve regarding PFAS contamination, what should property owners, developers and lenders know to manage risk and lower liability?

For stakeholders concerned about the possibility of PFAS contamination on their sites, environmental due diligence is a critical first step for determining if a property might have been a location for manufacturing, use or release of PFAS compounds, thereby potentially acting as a source of regional groundwater contamination. Secondly, all properties with potable water on-site, should have drinking water sampling and analysis evaluation as a liability precaution. The EPA has amassed data, tools and databases to communicate information about likely contamination sites and the latest known scientific studies.

Costs associated with contamination liability can be significant, as recent lawsuits against Scotchgard manufacturer 3M and Teflon manufacturer Dupont illustrate. Rely on the guidance of an experienced, knowledgeable local environmental consultant, who will be familiar with your individual State regulations and any changing guidelines or sampling recommendations.

Finally, be mindful that more stringent contamination guidelines or sampling requirements may impact sites actively undergoing assessment or possible re-investigation of previously closed or remediated sites. The best way to lower risk is to engage with qualified and informed environmental consultants to perform careful, meticulous due diligence assessments.