PFAS Matrix: Potential Hazards, Corrective Actions, and Regulatory Compliance

Perfluoroalkyl and polyfluoroalkyl substances (PFAS), often referred to as “forever chemicals,” are increasingly under scrutiny for their environmental persistence and potential health risks. Companies that manufacture, use, or dispose of PFAS face a growing web of regulations and potential liability for contamination. This PFAS Matrix examines issues that companies should review with legal counsel to proactively assess and address PFAS issues with the goal of both regulatory compliance and minimizing regulatory exposure.

PFAS Matrix to Reveal Potential Hazards

1. Internal inventory and risk assessment

Overview of Material Safety Data Sheets (MSDS): Carefully review the MSDS provided by your supplier for products containing PFAS or related compounds. This initial step identifies the potential use of PFAS in your operations.
Process mapping: Develop a comprehensive map of all processes that use or potentially generate PFAS. Include raw materials, manufacturing processes, waste streams, and end products. This map helps identify areas where PFAS exposure may occur.
Environmental audits: Consider engaging qualified environmental professionals to conduct on-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: Research PFAS content in materials sourced from upstream suppliers. Work with suppliers to understand their use of PFAS and the potential contamination of their products.

2. Analyzing the Regulatory Landscape and Compliance

Federal regulations: Stay up to date with EPA’s evolving PFAS Strategic Roadmap, which outlines potential federal regulations for PFAS production, use, and disposal. Proactive compliance minimizes the risk of noncompliance penalties.
State-specific regulations: Many states have enacted or are considering more stringent PFAS regulations, often exceeding federal standards. Developing a comprehensive list of applicable state regulations for your location is essential.
Industry regulations: Some industries, such as textiles, firefighting foams, and food packaging, may have specific regulations regarding PFAS. 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 that outlines strategies to reduce the use of PFAS substances, ensure their safe handling and disposal, and monitor regulatory compliance.
Investing in PFAS-free alternatives: Whenever possible, alternatives to materials containing PFAS should be explored and implemented. This reduces the risk of future contamination and potential liability.
Employee training and awareness: Educate employees about PFAS risks, proper procedures, and emergency response protocols. This fosters a culture of safe practices and minimizes accidental releases.
Regular monitoring and reporting: Establish a program to regularly monitor PFAS emissions and potential contamination at your facilities. Develop a system for accurate and timely reporting to regulatory agencies, as required.

4. Hire a lawyer

It is strongly recommended that you work with an attorney experienced in environmental law and PFAS litigation. Legal counsel can:

Gather information about the operation of the facility:

Review historical manufacturing records, including materials used, waste disposal practices, and any spills or accidents involving materials containing PFAS.
Identify the types of PFAS chemicals used or potentially used at your facility, including current and past operations.
Obtain information about the wastewater treatment system and wastewater disposal practices.
Develop a schedule of facility operations, paying particular attention to times when PFAS use was most intense.

Assess potential exposure pathways:

Identify potential pathways for PFAS migration from the facility, including air emissions, water discharges, and soil contamination.
Assess the surrounding environment, including data from soil, water, and air quality testing for potential PFAS contamination.
Consideration should be given to the proximity of residential areas, schools and other sensitive consumers near the facility.

Identify potential legal issues:

Be familiar with applicable 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 Clean Air Act (CAA).
Investigate potential lawsuits from individuals who claim they were exposed to PFAS substances related to facility operations.
Assess potential claims by adjacent property owners regarding potential PFAS contamination of their land or water.
Consideration should be given to government enforcement action for potential violations of PFAS contamination regulations.

Conduct environmental testing:

It is recommended that testing for PFAS in air emissions, water discharges, soil, and facility products be conducted, where applicable.
Advising the client on appropriate test protocols and laboratories for PFAS analysis.
Ensure testing is comprehensive and meets industry standards.

Develop a risk management plan:

Based on your findings, develop a plan to reduce the potential risks of PFAS exposure.
This may require the implementation of new technical measures to reduce potential PFAS emissions or remediation of contaminated soil and water.
The plan should also include strategies for monitoring PFAS levels and reporting any exceedances to regulators.

Proactive industry-wide considerations:

Stay up to date with the latest scientific research on PFAS and its health impacts.
Consult environmental engineers and other experts as necessary.
Maintain client confidentiality throughout the process.
Contract and insurance overview. Evaluate potential PFAS-related liabilities in supplier and customer contracts. Evaluate existing insurance policies for coverage in the event of a PFAS contamination incident.
Develop strategies for potential litigation. Prepare your business for potential lawsuits from affected communities or enforcement actions. This includes collecting appropriate documentation and establishing clear communication protocols.

To go

Navigating the PFAS landscape requires a proactive approach. By examining the areas discussed above, companies can assess potential errors, pursue 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.