By now, you may have heard of the emerging contaminant grabbing the attention of regulators across the country, known as “perfluoroalkyl” or “polyfluoroalkyl” substances (PFAS). You may have even noticed the increasing variety of legal claims in courts across the country alleging PFAS contamination. But no matter your past familiarity with PFAS, the time has come to start taking actions to protect your business from serious risk.
PFAS are ubiquitous. They have been utilized in numerous ways, ranging from carpet manufacture to wastewater treatment to firefighting at airports, refineries and military bases. PFAS are remarkably persistent compounds. Some PFAS are present in almost all biological tissue, including humans. Because PFAS do not degrade, any remediation of PFAS contamination will invariably pose an enormous (and costly) challenge.
Regulators are taking action on two common kinds of PFAS: “perfluorooctanoic acid” (PFOA) and “perfluorooctane sulfonate” (PFOS). In May 2016, the U.S. Environmental Protection Agency (EPA) set “Health Advisory” levels of PFOA and PFOS. EPA is also hosting a National Leadership Summit in May 2018 “to take action” on PFAS. In the meantime, state regulators are riding the coattails of EPA science in unpredictable ways.
In November 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) added PFOA and PFOS to “the list of chemicals known to the state to cause reproductive toxicity (developmental endpoint) for purposes of Proposition 65.” This means that, starting November 2018, companies doing business in California with 10 or more employees will be required to provide a “clear and reasonable” warning before exposing anyone to products with PFOA or PFOS. And starting July 2019, California businesses will be prohibited from discharging either chemical into drinking water sources.
As Starbucks recently discovered, violations of Proposition 65 can seriously threaten business operations statewide. Despite that risk—and unlike the EPA—OEHHA has not even established maximum allowable dose levels. OEHHA declared it “remains the responsibility” of regulated parties “to determine if a warning is necessary or a discharge is prohibited.” This regulation complements a host of new regulatory programs in California focused on PFAS. And of course, California is not alone; other states are cracking down on PFAS too.
Private legal claims are also proliferating, stemming from federal environmental statutes and the traditional toxic tort rubric. For example, courts are considering whether PFAS qualify for liability as a hazardous waste under the Resource Conservation and Recovery Act (RCRA). The RCRA allows courts to impose injunctive relief, in addition to attorneys’ fees and expert cost recovery, with the prospect of follow-up civil penalties. Furthermore, PFAS contamination could trigger the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While PFAS are not currently listed as “hazardous substances” under CERCLA, EPA has treated PFAS standards as “applicable or relevant and appropriate requirements” for deciding whether and how to remediate PFAS contamination.
In the toxic tort framework, PFAS plaintiffs are arguing that businesses should be strictly liable for PFAS contamination because of the abnormally dangerous quality of the chemicals. Or, at least, these plaintiffs allege that PFAS were manufactured or used negligently and that the negligent business should pay to remediate. These toxic tort claims come in a variety of forms and involve complex evidentiary issues, which could pose serious problems for businesses caught unaware.
Fortunately, there are actions your business can take now to prepare for the growing wave of PFAS regulation and litigation. As a first step, you should hire counsel to conduct an investigation of the risk PFAS pose to your business. By hiring counsel, your PFAS investigation can enjoy attorney-client privilege and attorney work product confidentiality. Counsel can also provide support to the investigation, from vetting an investigator to shaping the investigation to account for recent legal and regulatory developments.
Once you have a complete picture of your business’s PFAS risk, you can begin taking protective measures. For example, you should if at all possible immediately transition to PFAS-free equipment and supplies at all levels of your business. You should make sure your suppliers are providing products to you that are PFAS-free. You should also identify employees that have used PFAS at your business and constructively manage your PFAS records. By taking preventive actions now, your business will be ideally situated to challenge any PFAS litigation or regulatory enforcement actions head-on. You will be able to press litigants and regulators on the more difficult issues in PFAS science, especially those related to proving that specific PFAS exposures caused particular alleged injuries.
Finally, it is vitally important to stay up to date on new PFAS regulations, litigation and science. The next few years portend a whirlwind of activity related to PFAS. But this is an atypical emerging contaminant. PFAS are ubiquitous and durable. It will be crucial to stay apprised of PFAS developments to avoid significant risk to your business.
Jeffrey Dintzer is a partner in Alston & Bird’s Environment, Land Use & Natural Resources Practice Group. Nathaniel Johnson is a senior associate in the group. Both are based in California.