From John Oliver to CNN to the Wall Street Journal, everyone seems to be talking about PFAS. PFAS (per- and polyfluoroalkyl substances) are a family of manmade chemicals that have been used in manufacturing everything from apparel to cosmetics to food packaging.
In April, the federal government issued the first enforceable national PFAS regulations, and rather than just a problem for manufacturers of products with PFAS, this is now an immediate issue for owners and developers of all types of commercial real estate, and anywhere where PFAS may have been created or used.
In a recent NAIOP webinar, experts from Arnall Golden Gregory LLP, including Beth Davis, partner and co-chair of the firm’s environmental practice; Morgan Harrison, litigation partner; and David Marmins, litigation partner; joined Patrick McKeown, business development manager for ECT2, a provider of solutions for removing difficult-to-treat contaminants from water and vapor, to discuss how developers can prepare for PFAS regulations.
PFAS 101
The widely accepted origin story of the first known PFAS is that it was created by accident by DuPont scientists in the late 1930s during a freon experiment gone awry. The scientists quickly realized that this new chemical had a fluorocarbon bond that essentially made it waterproof, stainproof and oilproof, and therefore extremely valuable. For a country in the middle of World War II, DuPont immediately saw some very good applications for this. About 10 years later, after a lot of internal research and development, DuPont debuted its product we all know as Teflon, and the world has never been the same.
Documents produced in PFAS litigation to date reveal that as far back as the 1970s, chemical manufacturers like 3M and DuPont began looking into the potential health and environmental effects of PFAS. They conducted studies and experiments on animals, and they even monitored their own employees who worked directly with the chemicals. Of course, none of these studies were publicized or otherwise disclosed. All of that changed after the first major PFAS lawsuit was filed in the late 1990s by a man named Wilbur Tennant, a farmer whose land abutted the DuPont plant in Parkersburg, West Virginia, where Teflon was made. Tenants’ cows grazed and drank from a stream where DuPont’s chemical waste had made its way from a nearby landfill, and it wasn’t long before they all got very sick and died. Tennant eventually put two and two together and began reaching out to DuPont and later even the EPA to try and get some answers about what was going on. After years and years of being ignored, he filed suit against DuPont.
After a lot of discovery disputes that DuPont ultimately lost, the company produced hundreds of thousands of documents that revealed it had determined as far back as 1961 that PFOA (Perfluorooctanoic acid, a type of PFAS) is toxic in animals. When DuPont settled a lawsuit in 2004, the company agreed to finance a study of PFOA’s health effects and nearly 70,000 people participated. That study, called the C8 Science Panel, found a probable link between PFOA and certain diseases in humans.
Understanding Federal PFAS Regulations
The connection between PFAS and health impacts remains unclear – probably the main reason why the EPA and other federal agencies have studied PFAS and issued various statements on it over the years, but no enforceable regulations.
In 2009, the EPA issued provisional health advisories for PFOA and PFOS, two of the most common in the PFAS family of chemicals. In 2016, the EPA issued health advisories that were still not enforceable but recommended a lifetime limit in drinking water of 70 parts per trillion.
“That’s a very, very tiny amount, and it was very alarming to anyone in the industries that use PFAS because to comply with that advisory would require practically eliminating PFAS usage,” said David. “To give you an idea, they say that one part per trillion equates to a single drop in about 20 Olympic-size swimming pools.”
In April 2024, the EPA issued its first regulations, where they put in enforceable maximum contaminant levels for certain PFAS only. The limits went from 70 parts per trillion to either four or 10 parts per trillion, depending on the PFAS product. “We’re talking about barely detectable, barely measurable levels… We only have recently developed the technology to even measure at those levels,” David added.
The EPA also added guidance on the disposal and destruction of PFAS – a very complicated process because the same characteristics that make these products so useful make them very hard to dispose of and destroy. The EPA is currently recommending, not yet mandating, certain destruction and disposal methods.
The EPA also recently added certain PCOS products to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substance list. “So, while it used to be something for manufacturers… now it’s definitely got to be on the radar of owners and developers of commercial real estate more than ever,” said David.
Addressing PFAS in Purchases and Sales
All these new developments have created a huge amount of uncertainty in the commercial and business markets. The biggest issue in adding these constituents to a list of Superfund hazardous substances and designating maximum contaminant levels under the Safe Drinking Water Act is that any historically contaminated sites, brownfield sites, commercial sites that are former industrial or just former commercial operations, now come under scrutiny and can face the risk of reconsideration by the EPA. “Businesses that are purchasing commercial property must take that into account in due diligence,” said Davis.
Potential buyers are also asking for this information. They want to make sure they know whether there are hazardous constituents in the soil and groundwater at those sites, and if so, where it’s coming from and how it will be addressed. Property owners looking to sell run the risk of these issues coming to haunt them.
“The ‘no further action’ decisions that everyone loves to get – that letter that says we’re done, and you don’t have to do anything more at the site to remediate it or address hazardous constituents – those are always open to reconsideration,” said Davis. “These new constituents being added to the list of CERCLA hazardous substances is the perfect opportunity for that.”
To hear the full discussion, including how to remediate properties with PFAS, what’s next in regulation, and questions related to environmental insurance, listen to the webinar recording on the archived webinars page.
