by Susan Kite, PG
EHS Consultant

Multinational conglomerate company, 3M, is currently pursuing a legal settlement with the City of Stuart, Florida over water contamination from toxic “forever chemicals.” A 2018 lawsuit brought by the City accused 3M of manufacturing PFAS (or per- and polyflouroalkyl substances) despite knowing the chemicals could cause cancer and other illnesses.  This lawsuit is one of more than 4,000 filed against 3M and other chemical companies by municipal and state governments across the country. Amidst this legal and regulatory scrutiny, 3M announced in December that it would stop producing PFAS by the year 2025.

What are PFAS?
PFAS are varied group of thousands of manufactured chemicals resistant to heat and which repel oil, water and grease, are commonly known as the “forever chemicals.” PFAS have been identified in many places ranging from public and private drinking water supplies, soil and groundwater associated with waste sites, aqueous film-forming foams (AFFF) used at airport, military bases and firefighting training facilities, chemical plants and manufacturing facilities (i.e., chrome plating, electronics and textiles). PFAS are also found in our food supply due to exposure of food sources and from food packaging products, and in household products (i.e., stain and water-repellant used on fabrics), just to name a few. While research on low-level exposure is ongoing, current research suggests exposure to high levels of certain PFAS may lead to adverse health outcomes.

The EPA has taken numerous steps to address PFAS in the environment including the following:

  • September 2022 – The EPA proposed a rule to designate two PFAS (PFOA and PFOS) as hazardous substances under CERCLA. The EPA is currently reviewing public comments to the proposed rule.

  • December 2022 – The EPA provided guidance to states on how to use the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permitting program to reduce PFAS pollution by restricting PFAS at their source.

  • March 2023 – The EPA announced the proposed National Primary Drinking Water Regulation (NPDWR) for six PFAS, including PFOA, PFOS, PFNA, HFPO-DA, PFHxS and PFBS.  The NPDWR proposes to establish a legally enforceable Maximum Contaminant Level (MCL) for PFOA and PFOS of 4.0 parts per trillion (PPT) and to address PFNA, HFPO-DA, PFHxS and PFBS as a mixture using a Hazard Index, which is a tool used to evaluate health risks of simultaneous exposure to mixtures of related chemicals, based on the assumption of dose additivity. The EPA anticipates finalizing the regulation by the end of 2023.

  • April 2023 – The EPA published an Advance Notice of Proposed Rulemaking (ANPRM) to expand the list of PFAS chemicals currently proposed (PFOA and PFOS) to include seven additional PFAS, or some subset thereof, to be regulated under CERCLA.  The public comment period ends in June 2023.

As PFAS are not currently defined as a hazardous substances, evaluation of PFAS is considered an “out-of-scope” item in Phase I environmental assessments (Phase I ESA [due diligence). The addition of PFAS substances to the list of CERCLA regulated substances and increasing regulation at the state level will generate further challenges to lenders, insurance companies and environmental consultants alike, including additional expenditures for the evaluation and remediation of sites where these substances may have been used. Prior subject property and adjoining property occupants and property users will need to be evaluated in greater detail in terms of potential users or generators of PFAS paying close attention to the types of PFAS sources listed above.

How Can We Help?
The EI Group, Inc. (EI) has a team of geologists, scientists and engineers with decades of due diligence and environmental consulting experience to help navigate the rapidly evolving regulation of PFAS in the environment. EI personnel are able to assist in conducting Phase I and Phase II ESAs for a wide variety of properties and to assist with other environmental concerns.  Please contact Susan Kite, PG at (502) 499-6490 or [email protected] if you have any environmental concerns.