EPA PFAS Regulations: Managing Risk, Limiting Liability

Per- and polyfluoroalkyl substances (PFAS) are a class of ~15,000 chemicals first commercialized in the 1940s. Since the late 1990s they have come under increasing scrutiny due to their toxicity and widespread buildup in the environment. Recent studies have shown that 98% of Americans have elevated PFAS levels in their blood, linked to cancer, immune dysfunction, liver damage, and fertility issues. Because they don’t break down readily, PFAS chemicals have become known as “forever chemicals,” contaminating soil, air, water, humans, and wildlife globally.

In response to this serious public health concern, the EPA has taken unprecedented action to research the impacts, restrict the production and release of PFAS, and require remediation wherever necessary. Now it is crucial to understand the rapidly evolving regulatory landscape and help potentially responsible parties (PRPs) manage risk today and limit liability in the future. In this post, we’ll give an overview of how PFAS became a global problem, what steps regulators have taken, and how Cascade’s integrated services and expertise can help.

History of PFAS Chemicals and Emerging Liability

PFAS chemicals were developed and manufactured by Dupont and 3M beginning in the 1940’s, and rapidly became ubiquitous in consumer products due to their unique chemical properties – resistance to heat, water and oil. Familiar household products include non-stick coatings for cookware, water- and stain-repellent coatings for clothing, shoes and carpets, firefighting foams, and fast-food packaging.

In 1999, the first PFAS (PFOA/C8) lawsuit was brought against DuPont by Wilber Tennant, a farmer with land adjacent to a DuPont manufacturing facility and landfill. He lost 190 head of cattle, and he later died from cancer. A class action lawsuit followed in 2001 (dramatized in the riveting 2019 film, "Dark Waters," currently showing on Netflix and recounted in Exposure, a true crime book authored by the Tennant’s lawyer, Robert Billot).

As revealed in the lawsuit, DuPont knew about the toxicity of PFAS as early as the 1950s but didn’t notify the public or regulators, nor did they adequately dispose of their PFAS waste.

In 1998, the EPA first became aware of issues with PFAS, and by the early 2000s, numerous studies confirmed both the toxicity and widespread distribution. Today, the extent of the known contamination known is staggering, with the most recent estimate of 5,021 known contaminated locations in the US and another 41,828 industrial and municipal sites that are suspected sources of PFAS contamination.

Since 2001, dozens of class action lawsuits and state actions against DuPont, 3M, and 15 other PFAS manufacturers have been filed, with over $17B awarded for PFAS-related damages. Industry observers believe the cumulative total will eventually exceed $200B, on par with asbestos and tobacco industry settlements. Remediation costs are estimated to be >$100B just for current known sites, according to a recent estimate by Environmental Business International.

New Regulations and Their Implications

Over 25 years after being made aware of the hazards of PFAS, the EPA has now rolled out a comprehensive multi-agency approach to PFAS which includes new PFAS regulations, actions and reporting requirements under six regulatory frameworks: SDWA, CERCLA, RCRA, TSCA, EPCRA and the CWA (see figure). Of the new regulations, the two that are the most impactful for our clients are:

• SDWA: The EPA issued a National Primary Drinking Water Regulation (NPDWR) for six PFAS that limits perfluorooctanoic acid (PFOA) and perfluororoctane sulfonic acid (PFOS) to Maximum Contaminant Levels (MCL) of 4 ppt in drinking water, with MCLs of 10 ppt for perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), and hexafluoropropylene oxide dimer acid (HFPO-DA), known as “GenX chem” The MCLG, or MCL Goal, for these chemicals is set at zero, reflecting that there is no safe level of exposure to these chemicals.
• CERCLA: Ppolluters financially accountable for cleanup of regulated hazardous materials. Five types of PRPs are affected by the new CERCLA rule: owners and operators of manufacturing facilities producing or using PFOA and/or PFOS, importers, processors, product manufacturers and downstream product manufacturers and users of PFOA- and/or PFOS-containing products, waste management facilities, and hazardous substance transporters.

While drinking water is the focus of the new rulings and can be used by states to set MCLs for groundwater cleanup, the broader implication is that upstream source contamination of drinking water must be addressed, including 1) sources of PFAS in soil that are contaminating groundwater, and 2) groundwater contaminated with PFAS that can migrate and impact drinking water sources.

Managing Risk and Limiting liability

Every PRP that has made, used, transported, stored or disposed of PFAS must now assess their risks and limit their liability. The level and scope of risks that PRPs are now grappling with is enormous, including non-compliance with emerging regulations, unknown extent and cost of remediation, litigation risks, and the risk of insurance coverage denials, to name a few.

To limit liability, proactive PRPs will work with experienced environmental consulting firms and trusted implementation partners like Cascade to conduct comprehensive site assessments and develop and execute remediation plans that utilize the most effective PFAS remediation technologies.

Many conventional remediation technologies face challenges with PFAS due to the difficulty of destroying their highly stable and non-reactive carbon-fluorine chemical bonds. Cascade has invested in the development of advanced technologies to address PFAS source zone cleanup and plume management since 2020, and has developed two innovative approaches:

• ColloidalChem™ and ColloidalChem + Anchor™– for in situ remediation of PFAS-contaminated groundwater. These deploy injectable colloidal activated carbon (3 µm) to sequester PFAS via adsorption, and then physically anchor these mobile amendments with enzymes for PRB applications.

• TerraTherm™ high temperature thermal conduction heating (TCH) in situ or ex situ technologies - for remediation of PFAS in soils. This approach heats PFAS-contaminated soils until they react with naturally occurring metals in the soil to form inert and non-toxic compounds. This process also captures and destroys any PFAS related compounds in the vapor stream using a patent pending, specially formulated catalyst to ensure no hazardous emissions due to the treatment.

Even though PFAS contamination is an unprecedented environmental and public health problem, it doesn’t have to be a forever problem. With Cascade’s innovative technologies, it is possible to fully remediate PFAS source zones, and contain and manage PFAS groundwater plumes.

PFAS Remediation – How Cascade Can Help

More than ever, clients with PFAS risk need the technical support of experienced, reliable environmental remediation providers. As the national leader in groundwater and soil remediation, Cascade offers an unparalleled breadth of services and technologies, to support across project phases from drilling and investigation through field implementation. Our innovative solutions and technical experts are here to help you manage risks and limit liability today and in the future for these persistent “forever chemicals” and other contaminants.

Contact us today to get solutions for your PFAS risk and remediation needs. You can also learn more about our solutions with the webinars and resources below. Also stay tuned for the second blog post in this series, Managing PFAS Risk: Plume Treatment with ColloidalChem™, available 5/21/2024. 

ABOUT THE AUTHOR

Eliot Cooper

Vice President of Technology & Business Development  

[email protected]

Eliot Cooper is the Vice President of Technology and Business Development. In this role, he helps clients design efficient and cost-effective remedies using high resolution site characterization (HRSC) and a vast array of remediation options. His specialty is finding the right combination of tools and technologies for complex sites, and ensuring every step of the remediation process is optimized to achieve results.