Category: PFAS

Holland & Knight LLP
Meaghan A Colligan, Amy L. Edwards, Paul C Sarahan, Nicholas William Targ and Dianne R. Phillips

May 1, 2020

Per- and polyfluoroalkyl substances (PFAS) present a new and potentially expensive environmental risk in real estate and corporate deals. Regulators are focused on developing standards for PFAS across the country. However, it is still uncertain at the federal level, and in many states, how PFAS will be regulated and to what levels. New risk-based research continues to be released showing that certain strands may pose risks to health and the environment. Additionally, many large-scale lawsuits have been advanced in the past several years seeking damages for personal injury, property damage and recovery of remediation costs under federal environmental statutes. At least nine federal enforcement actions and dozens of state enforcement actions have been advanced related to PFAS to date. As such, PFAS poses a major risk in transactions that, if not managed, can result in significant liabilities.

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Crowell & Moring LLP
Peter Gray and Amy Symonds

February 13, 2020

The federal government is imposing one of the first environmental requirements for per- and polyfluoroalkyl substances (PFAS), and industry must plan accordingly.

Under an obscure provision of the National Defense Authorization Act for Fiscal Year 2020 (NDAA), Congress directed the U.S. Environmental Protection Agency (EPA) to list certain PFAS under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). Specifically, Section 7321 of the NDAA mandated that 14 specific PFAS plus any additional PFAS that meet certain criteria be listed as “toxic chemicals” that are subject to the annual Section 313 reporting requirement. EPCRA Section 313 (also referred to as the Toxic Release Inventory or TRI) imposes reporting obligations on facilities involved in industries identified by certain SIC codes (largely covering facilities in the manufacturing, mining, and power sectors). Specifically, if a covered facility manufactures, processes or otherwise uses a listed toxic chemical above an applicable threshold quantity, the facility must annually report to EPA environmental releases of and other waste management activities relating to that toxic chemical.

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Thompson Hine LLP
Joel D. Eagle

January 9, 2020

An update to this publication was released on January 21, 2020.

It is a question we’ve heard so much recently: Are per- and polyfluoroalkyl substances (PFAS) really everywhere? The answer is certainly “yes” if measured by the flurry of recent federal and state “action plans” and proposed statutory and regulatory changes (including the proposed federal “PFAS Action Act of 2019” discussed below); Hollywood movies (“Dark Waters”); streaming documentaries (Netflix’s “The Devil We Know”); and a nearly constant flood of media coverage about PFAS. If the metric is the confirmed presence of PFAS in the environment through sampling, then the jury is still out. But extensive ongoing and planned nationwide groundwater and drinking water supply system sampling and investigations at known or suspected contaminated sites, will help answer whether PFAS are really everywhere.

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Davis Wright Tremaine LLP
Gerald George

January 10, 2020

On January 8, 2020, the Trump Administration proposed streamlining the National Environmental Policy Act (NEPA) regulations for evaluation of the environmental impacts of major projects, in part by removing the existing requirement to consider “indirect,” “direct,” and “cumulative effects.” Instead, the proposal narrows the definition of “effects” to be evaluated to include only those that are “reasonably foreseeable” and having “a reasonably close causal relationship to the proposed action or alternatives.”

After publication in the Federal Register, the proposed regulations will be open for public comment for sixty days. Given the expected scale of response, publication of the final regulations is unlikely before fall 2020, and the new regulations will almost inevitably face court challenges arguing that the narrowing is inconsistent with the statute itself.

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Loeb & Loeb LL
Albert M. Cohen

January 17. 2020

Over the past few years, PFAS (per- and polyfluoroalkyl substances) have come under increased scrutiny by a variety of regulatory agencies.

In March 2019, the California State Water Board (Water Board) initiated a statewide effort to assess the scope of contamination by PFAS in water systems and groundwater. It issued nearly 14,000 investigatory orders to various entities, including public water systems within two miles of airports and one mile of landfills. The Water Board also issued orders to hundreds of chrome-plating operations throughout the state, requiring them to conduct investigations to determine the presence of PFAS.

California also enacted AB 756, which authorizes the State Water Pollution Control Board to order public water systems to monitor for PFAS and to take specified actions in the event certain identified levels of PFAS are detected. As a result, additional water systems and purveyors are likely to receive orders requiring them to investigate for PFAS.

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