PFAS regs and litigation—attorneys' perspective

Grant Gilezan and Paul Stewart are attorneys who have dealt in-depth with PFAS-related matters.

And while they haven't dealt with any rubber industry clients, they definitely are in position to give advice and perspective that would apply to companies in the sector. They are part of Dykema Gossett P.L.L.C., a firm with 14 U.S. offices and an environmental team of lawyers and policy advisers who help clients navigate the rules, manage risk and resolve disputes to meet compliance, sustainability and ESG goals in a cost-effective manner.

But back to the per- and polyfluoroalkyl substances commonly known as PFAS.

Gilezan said with the vast universe of thousands of chemicals that fall under the PFAS umbrella, there is a quite distinct difference between the fluoropolymers that the rubber industry mainly deals with and the long-chain substances such as PFOS and PFOA that have garnered a lot of the initial attention of litigators and those looking at setting regulatory restrictions.

With that said, however, that isn't necessarily the case with the formal legislation that is under consideration both at the federal and state levels.

"It will be interesting how the rubber industry addresses this," Gilezan said. "There may be some play going forward to say not all PFAS compounds are alike. And not all will be receiving the same level of regulatory priority, as well as public attention and concern."

With the manufacture and use of PFAS going back decades, it's a good ideas for companies to see if it was a potential user of PFAS.

"For decades this stuff may or may not have been contained in products that were purchased," Stewart said. "Even if they were, those products might not have been labeled as such. There is this situation where there are tons of focus, and regulations coming left and right, at the state and federal level."

This can be quite a daunting exercise, as the most obvious place to start is by looking at Safety Data Sheets (previously known as Material Safety Data Sheets). But even if the sheets can be located, if you go back far enough, Stewart said PFAS wasn't necessarily required to be disclosed, for instance if the manufacturer didn't believe it was hazardous to workplace safety at a certain threshold.

"It can take connecting a lot of different dots rather than having one source to tell you what was in the stuff and whether it was PFAS," the attorney said.

Another concern for businesses that were users—rather than manufacturers—of PFAS, as much as there is talk about the chemicals' resistance to degradation in the environment, there are well-documented instances that there can be degradation or changes in characteristics once it's in the environment.

And while it can't change from a short-chain into a long-chain PFAS, it "can go from one considered relatively benign to one that's considered less-benign," according to Stewart.

While short-chain PFAS generally is thought not to be as likely to leach out into air or water, the attorneys said that might not necessarily keep short-chain chemicals from becoming targets.

"You'll see that among the scientific technical community, there are already relative priority rankings. When you look at fluoropolymers in the rubber industry, they really would initially be considered as 'polymers of low concern' " Gilezan said.

"Nevertheless there is still so much risk of potential regulation and so much stigma, that to the public one PFAS is really all PFAS, even though they're really not."

While the longer-chain PFAS to this point has brought the most concern, Stewart said this past March the U.S. proposed maximum contaminant levels (MCL) under the Safe Drinking Water Act. And of the six, three—PFHXS, PFBS and GenX—are considered short-chain PFAS.

GenX is a trade name of Chemours Co. that was developed as an alternative to PFOA in the synthesis of PTFE.

"To be clear there are vast list of thousands of PFAS chemicals," Stewart said. There are vastly different concerns as you go from one to the other, so it's important to look at on an individual basis. But I would caution a little bit about labeling short-chain as not potentially being subject to some heightened concerns, depending on which ones you are talking about."

Gilezan added that it's an interesting paradox that one of the first pivots to a short-chain from long-chain was the "X substitutes," and now there still is concern attached because there isn't a lot of information developed about them yet.

"So the proposed regulation, which still remains proposed, it is a telling thing of how the agency is thinking," he said.

It's not surprising, Gilezan said, that the first target of the EPA is the potential for drinking water contamination.

"The most prevalent concern is that PFAS is in the water supply," the attorney said. "Either from groundwater going through wells or municipal wells, or through surface waters."

And while the EPA is waiting for the MCLs to be finalized by the end of the year, the agency is looking at using the Comprehensive Environmental Response, Compensation, and Liability Act—commonly known as CERCLA or the Superfund program—as one of its main weapons in attacking PFAS cleanup.

Gilezan said the EPA already has come out with a screening level that would be used to investigate levels of PFAS at current Superfund sites.

"It is a ready-made model at least for the agency to take the first important step, which is to survey just to what extent PFAS is in the soil and the groundwater," he said

The legal implications right now are very directly felt by parties, some of whom have been involved at cleanup sites, particularly large ones, where the remedy really isn't eliminating every last molecule of the original contaminants of concern, but rather containing them in a protective manner, according to Gilezan.

"These are perpetual projects under which there is a comprehensive agreement between the responsible party and either federal or state government," he said. "As part of that there are provisions that enables the agency with jurisdiction to act upon new information or new regulations, even if it has no bearing on the original chemical of concern, which really none of these sites do, because PFAS was not known until a few years ago as a potential contaminant of concern."

It would then be tough under the Superfund statute for a party found liable at a present site to argue it shouldn't be responsible for PFAS contamination, because the act uses "status liability," rather than traditional causation—such as negligence or willful acts—as the basis for placing blame.

"It would be difficult for those parties to essentially prove the negative," Gilezan said, "that they don't have any bearings to these chemicals, particularly in sites that go back for decades of unknown use."

Lawsuits that are getting the most headlines, Stewart said, are the cases being filed by state attorneys general that typically target the largest PFAS manufacturers. "Early on there was a settlement between 3M and Minnesota," he said. "It prompted other states to pursue cases, and it just kind of gained momentum after the first few got filed, and the momentum has grown."

There also is a difference in the expectation of the liability of the supplier of the material, as opposed to those who use it to make other products, according to Stewart.

"When you look at lawsuits filed against manufacturers versus users, plaintiffs have more to say and can try to argue with against manufacturers for the basic reason they are synthesizing this from scratch and in many times invented the chemicals," he said.

Users, on the other hand, can say they are buying the material on the open market and can't potentially have the level of knowledge that a material supplier would have.

"But once you get into the regulatory scheme, CERCLA or state counterparts, knowledge really is immaterial, and status liability kicks in," he said. "If you are a manufacturer who operated a site and there was a lot of contamination around it, you're going to be in the same boat as the user who had no idea what was in these products that has contamination around their site."

On the federal level, Stewart said the two biggest things of note are the EPA's finalization of the MCLs, along with PFOA and PFOS proposed to be designated as hazardous chemicals under CERCLA, a rule expected to be finalized in February 2024.

"The EPA is seeking comment on regulating additional PFAS," he said. "The takeaway is that PFOA and PFOS are really just the beginning of what's coming."

The states are all over the place, he said. Some have extensive regulations on PFAS, while others have had little or no activity.

"The point is that as the federal drinking water standards are finalized, not only by definition will they apply to most public drinking water systems in the country, but also will likely have a major impact on the general drinking water regulations under various state regulations," Stewart said.

Background contamination is another topic to keep an eye on. He said it's not a concept new or specific to PFAS, but is used in the regulatory arena when talking about potential contamination associated with a specific site or facility.

"Background would be referring to what would be in the area that is not associated with the specific site," the attorney said. "Even if the site never existed, it factors that contamination would be there anyway on that property. It cannot be traced to an identified source, and typically comes from multiple sources."

Stewart said it's important for PFAS because a lot of research is still being done on the "forever chemicals."

"There is still so much more to learn about the way that PFAS moves around and behaves in the environment," he said. "And how much is out there, and how it disperses in the environment or rain water."

It's also an important concept because PFAS is used in so many places and industries, and can be dispersed over very long distances. "It can be widespread in environment, and especially in surface soil," Stewart said. "This is an issue that already is coming up, with sampling and evaluation of PFAS at sites. It will be a very common feature of contaminated sites going forward."

As for concerns that if the U.S. EPA takes too long in acting on PFAS concerns, the states will ramp up their efforts, Gilezan said that at first thought this is a legitimate fear.

One example, he said, is Michigan, which already is taking an active role in developing PFAS criteria and understanding to what extent PFAS is in the state's environment.

"And how that drives understanding, and where there is commonality or divergence among the states is a legitimate concern, especially as this is a dynamic area," he said.

But having differing standards really isn't uncommon, according to Gilezan, citing the regional manner in which the Superfund program has developed.

" In many instances, stakeholders will look to the federal government for a more universal standard to how they can best operate as they are addressing things," Gilezan said.

"... After 34 years in this space, I would not have any realistic expectations for a harmonizing of PFAS standards going forward. I would not be advising people to there being a universal approach."