Transcript: Understanding PFAS: The Latest Environmental Hazard on the EPA’s Radar
CLARICE: Good morning, everybody. And welcome to this week’s episode of Environmentally Speaking.
MARISA: Hi, everyone. I’m Marisa Desautel, an environmental attorney here in Rhode Island.
CLARICE: And I’m Clarice, usually coming in with topics to talk about, but, Marisa, this one was all you.
MARISA: It was.
CLARICE: I got an e-mail saying podcast ASAP.
MARISA: Emergency podcast ASAP, I believe, is what I sent your way.
CLARICE: Even more urgent.
MARISA: What kind of topic demands this level of interest?
CLARICE: Our favorite topic, Superfunds.
MARISA: Yeah.
CLARICE: We love them in the sense of we don’t.
MARISA: Superfund is a — not a colloquial term but a term that the industry and stakeholders developed for something known as CERCLA which is an acronym for the federal statute dealing with hazardous wastes, hazardous pollutants that are found in contaminated property to such an extent that the federal government will step in and take emergency corrective action. What I’m talking about are instances where a chemical factory is on fire. An industrial facility is discharging toxic chemicals, toxic pollutants to a water body and the reason that the government steps in is because the government doesn’t know at that point who’s responsible. And if the government had to stop and assess who was responsible and go to court —
CLARICE: No, it’s going to take way too long.
MARISA: — the planet would be burning worse than it is. So they call it Superfund, not super fun, because there is a restricted receipt account that the federal government maintains with funds with money in it that the government taps into to undertake these emergency corrective measures. And then the government will turn around and go after who it deems to be a potentially responsible party.
CLARICE: Yeah. It’s a situation of pay me back.
MARISA: That’s right.
CLARICE: Yeah. And I always think of anything that would count as one of these sites is something — anytime a chemical that really should be contained is no longer contained.
MARISA: Yes.
CLARICE: So any time there’s a situation like that where there’s a risk of these chemicals being out in the world not in their, in my mind, cartoon metal vats, we got a problem.
[0:03:13] MARISA: What did you say, cartoon what?
CLARICE: Metal vats. Like if we always think of like the old superhero cartoons how they always have chemicals in these like toxic metal containers, these drums. I don’t think that’s out there in the real world.
MARISA: It says Acme on the side.
CLARICE: Yes.
MARISA: And the roadrunner is coming —
CLARICE: Oh, absolutely.
MARISA: — to mess things up.
CLARICE: Yeah. There’s a skull and crossbones. It’s very dramatic.
MARISA: Yeah. And, frankly, if you look up any Superfund property, it is very dramatic. The point at which the government says, we have to come in and take control and prevent additional harm, it’s usually a very dramatic situation. There’s an explosion or, like I said, a fire or some other astronomical event where public health and safety is in jeopardy.
CLARICE: So, specifically, we’re talking about — it looks like there are new chemicals added to the list of the — is it added to the list of things that the CERCLA act is watching out for? Are they new chemicals that now have a higher burden of caution? What would you label these two new chemicals as?
MARISA: Let me back up for a second because I got so amped up talking about CERCLA that I forgot —
CLARICE: We forgot why.
MARISA: — that we had an additional topic that falls within the purview of CERCLA. I just like thinking about plants exploding and fire, just got me all charged up. So Clarice is right. We’re not here to talk about just CERCLA. We have other podcasts that we’ve done talking about CERCLA in general and then some more specific topics associated. But this particular topic is something that came out at the end of last week and it’s got the environmental community in a bit of a tizzy, as nerdy as a tizzy can get with attorneys and consultants and scientists and regulators being involved.
CLARICE: All right. There’s a little drama.
MARISA: It’s a huge drama and it’s breaking news which is why I wanted so badly to jump on here and create kind of an emergency episode. What the hell am I talking about. The United States EPA, at the end of last week — middle to end of last week — today is April 29th so mid April — came out with an announcement that shocked the hell out of me. It has to do with this group of substances called PFAS.
[0:06:14] CLARICE: Oh, catchy.
MARISA: Sometimes it’s also known as PFOA depending on what particular compound we’re addressing. Generally speaking, PFAS has gone by the acronym P-F-A-S, PFAS, and refers to per and polyfluoroalkyl substances.
CLARICE: I’m really happy you took that.
MARISA: Fluoro means there’s an element of fluoride in there and alkyl means it’s an alkaline substance. What? What are these things? PFAS is the latest grouping of substances that government regulators and scientists are concerned with because they persist in the environment. They don’t break down. There isn’t a mechanism by which we are aware at this point of how to get rid of them once they get into the environment. And when I say environment, I mean groundwater, soil, substances that humans are coming into contact with to such an extent that these substances have been found in humans. Something like — I think it’s 80 — I don’t know the exact percentage. I’m going to throw one out there and please correct me, someone. Something like 85 percent of all humans have PFAS in their bloodstream already.
CLARICE: Wow. And we touched on this before, the idea of — you know, I’m using air quotes — but forever chemicals.
MARISA: Uh-huh. Yeah.
CLARICE: Especially when we were talking about the Ohio train crash and all of those chemicals that spilled. That’s when we first started talking about it. So if you’re looking for a more — you know, a longer conversation about forever chemicals, what they are, how they work, go back and see that episode. But it looks like PFAS and PFOA are in that family, too.
MARISA: Yeah. They persist in the environment. They’re also pervasive in that PFAS is in everything. It’s included in your nonstick cookingware like Teflon. It’s included in firefighting foam. It’s in synthetic materials, textiles, stuff that we’re putting on our — you know, clothing that we’re putting directly next to our skin. They have been detected in drinking water around the entire planet, so it’s everywhere.
It’s a problem and in my experience the state of Rhode Island has been trying to figure out how to regulate it, but it’s not easy because there’s no known way to treat it. You know that it’s everywhere, so how do you even begin to try to solve that problem. The state legislature in Rhode Island, at least, has been trying to figure out how to ban the use of it. I mean, it’s an emerging contaminate, meaning we’re just finding out about it and banning it is the first step that we’ve been able to take. Excuse me. A little PFAS in my throat. So besides the states trying to figure out how to regulate it, the EPA, the federal government, has been trying to figure out how to regulate it. And they’ve decided to include it as a pollutant that gets listed under CERCLA or the Superfund statute that we were talking about.
[0:09:59] CLARICE: Okay. I already have a question. If it’s everywhere and in everything, does every site turn into a CERCLA site because it’s there? Does it have to be at a certain threshold? It just seems that it’s so pervasive and present. That’s going to kind of kick up the concern in every site whether there’s a disaster or not.
MARISA: Yes. Hence the excitement.
CLARICE: I get it.
MARISA: Because we don’t know. EPA made this announcement that it’s going to be promulgating a recently published — through its promulgation process, a final rule which creates this legally enforceable mechanism that the drinking water standard for these PFAS has to be remediated. So it’s expected to affect millions of people, thousands of schools, landlords, manufacturing facilities, and other entities across the country. So that’s just the drinking water rule.
The other element of this initiative is that EPA is also going to be telling you how to remove PFAS from soil and groundwater as part of its remedial program. It’s a scary thought because if you know anything about CERCLA liability it contains a provision for two things that property owners are struggling with now just ass a result of the existing contaminates listed with CERCLA, strict liability, number one, and joint and several liability. Strict liability means if you broke it you bought it. If you are on the chain of title in any ownership capacity, you are on the hook. You are liable to clean up the property. It goes as far back as the land evidence records go.
So if you owned a property in 1995 and the government says, we have evidence that this property was contaminated in 1995, then you are on the hook. It doesn’t matter that you didn’t know. It doesn’t matter that PFAS wasn’t regulated back then. It’s strict. That’s why the term strict liability exists. It’s almost like blinders. We don’t care. We don’t know. As long as you owned the property or had some dealing with the property and contributed to the problem, you are responsible.
Number two, the joint and several liability element, also very scary for property owners because it means that you are both 100 percent responsible for cleanup and a percentage of responsible for cleanup with everyone else that is strictly liable. And that’s in place because the government, for purposes of Superfund, says, this is such a big deal that we’re going to name everyone and you guys duke it out —
[0:13:30] CLARICE: Yeah.
MARISA: — because you’re responsible for this, you sue each other for contribution and indemnification, we’re just going to name everyone and tell you all that you are absolutely liable and you are responsible for the cleanup joint and severally, meaning apart and altogether because if one potentially responsible party is no longer available either by virtue of the fact that all the shareholders are no longer with us or the business was sold, the government doesn’t want to get bogged down with those details. The government says strict liability, joint and several, everyone’s on the hook, you guys figure it out, you duke it out amongst each other to figure out who’s going to contribute what. So this is crazy because now you’ve got a pervasive, persistent contaminate that’s everywhere and the government is just going to say everyone —
CLARICE: It’s all your fault.
MARISA: — here, everyone, you figure it out.
CLARICE: And you had sent an article to go along with this topic and I was looking at the list of the following examples when risk of PFAS contaminates should be considered. And if you go down that list, I read it and thought that’s any sort of production. That’s any sort of commercial. I couldn’t figure out a business where that wasn’t going to be a concern or an option and some of them are electronic or not electronic products, food packaging, textiles, personal care, printing, a landfill. If a fire has ever occurred — you touched on this earlier — you know, it’s not just — the firemen don’t come out just with the hoses. They’ve got the foam. They have the other chemicals to put out the fire. It seems like everything. But then what I loved immediately after the list of everybody’s at risk was don’t test indiscriminately because there’s chemicals everywhere. And I was like what do you do?
MARISA: Wait. That’s what it said? I didn’t see that.
CLARICE: It absolutely — it’s at the very bottom of the article and we’ll put this in the show notes. Right after it lists any possible production or business, immediately after in bold it says, but don’t test indiscriminately because studies have shown that PFAS is ubiquitous in the environment, meaning you’re likely to find it almost anywhere at low concentrations. Folks, I’ve got my hands up.
[0:16:14] MARISA: Yeah. So no one’s going to be testing for this stuff. It’s strict liability. And then it begs the question — this has come up in other contexts. If you’re a consultant and you are performing due diligence for a property on behalf of a client you now have to include PFAS as one of the constituents of concern. What if you find it at the threshold that EPA is setting through its rule making? Do you report it to the government?
Now, I’ve heard the government say, yes, consultants are responsible to report any exceedance that they find as a result of their site investigation. And when that comment was made, it was during a conference. Everyone in the audience freaked out because how can that be. How can the consulting industry and scientists and nonproperty owners be responsible to report another party under CERCLA? And once you’re in it, you’re in it. It’s a huge risk and a huge liability, so to now add this PFAS to the list is only going to exacerbate that problem. And I’m not saying whether the government is right or wrong about that reporting expectation. I can just tell you that having been a consultant, putting the onus on the consultant to do the reporting for PFAS is — I mean, that’s — no. .
CLARICE: That’s just no.
MARISA: I can’t see that happening.
CLARICE: And I forget. I’m trying to skim the article now. It was something like — and I can’t find the measurement, but I remember it being something like it had to be a gallon per — and I can’t remember it, which sounded like a huge amount compared to when we talk about other chemicals. But, again, I can’t find — it was a gallon per what and now that we’re talking about it I’m struggling to find it.
MARISA: Yeah. I have to tell you I’m not even — this just came out last week. We might have to do another episode on this to really drill into what the rule requires. I just think as an announcement this is so huge that it’s going to impact like everyone.
CLARICE: Everything.
MARISA: It will trickle down eventually. You know, right off the bat we’re dealing with due diligence as the first tier, is my guess, but it’s going to impact lending, property ownership, purchase and sale, litigation that’s going to come out of this, drinking water standards, so, you know, schools. And it’s going to impact — as it should. It’s a pervasive and persistent pollutant, so it should be impacting all of us, but I’m also shocked as a professional working in this industry to see it listed as a CERCLA pollutant. We’re going to have to come back to this, I think.
[0:19:26] CLARICE: Yeah. And I can see coming back to this we’ll be doing follow-up episodes about how it’s actually being applied, how it’s actually in practice because at this point this seems like a sweeping announcement, but to see it in action is going to be a very different animal.
MARISA: Yeah. Agree.
CLARICE: Well, everybody’s covered in PFAS.
MARISA: Yeah. Oh, here it is.
CLARICE: Oh, did you find it?
MARISA: I found it.
CLARICE: Thank you.
MARISA: The ruling includes a federal reportable quantity threshold for releases that equal or exceed one pound in a 24-hour period.
CLARICE: A pound, that’s what it was.
MARISA: And so how do you clean that up? There’s no methodology I’m aware of that science has been able to come up with that can capture, sequester, treat either at the site or otherwise to a threshold that’s acceptable. We just don’t know what to do with it.
CLARICE: Well, not only that but how do you measure a pound in 24 hours? What does that look like?
MARISA: Very careful.
CLARICE: If it’s everywhere how do we tell like if it’s growing to that pound measurement?
MARISA: And this seems to be applicable to a release, not to an existing amount that’s already in the environment.
CLARICE: That feels more active.
MARISA: So that tells me that disproving or proving the release amount is made more difficult unless you’ve got a preexisting background number for PFAS and I don’t know that facilities have that right now, so how do you measure release?
CLARICE: Forty-eight hours?
MARISA: Yeah. We’re definitely going to have to do another episode.
CLARICE: Oh, goodness. Well, folks, if you have any thoughts, comments, or questions, we do, too. Feel free to send them in. We’re on social media on Facebook, Instagram, and formerly known as Twitter. You can e-mail Marisa at —
MARISA: Marisa info@DesautelBrowning.com.
CLARICE: Nice. Well, have a good one, everybody.
MARISA: Thank you.
