PFAS for Decision Makers: Managing PFAS Risk in Today’s Deals – While Preparing for What’s Next

Elizabeth Mack: It’s evolving, but EPA has two on its list, and in general, there’s a list of six PFAS contaminants that may be regulated in any particular jurisdiction. Some states are requiring testing of a longer list of PFAS contaminants (assuming the Site is regulated), but it appears they are collecting information for further study.

Lucas Barroso-Giachetti: To second Elizabeth, it’s evolving, and your project location may be the most important factor in answering that question. States with promulgated soil and groundwater standards, such as North Carolina, provide defined lists and action levels, whereas other states still point only to drinking water MCLs as the PFAS regulations being considered at the state regulatory level. From a CERCLA perspective, PFOA and PFOS are to be considered in any state as part of an inspection/environmental due diligence process.

Elizabeth Mack: Agreed. Many Pollution Legal Liability policies are carving out PFAS.

Steve Banovetz: We did get a policy for a site in Illinois, and upon receiving our No Further Action letter from the Illinois EPA, we were told we should be able to obtain coverage for off-site PFAS impacts. I agree that many times it is getting carved out, but working closely with the insurance company might be able to get it included.

Elizabeth Mack: Very low concern. It can be a budgeting issue if you need to dispose of soil off-site. I would not allow the soil to be used for any sensitive use, such as a school, playground, or house of worship.

Steve Banovetz: Low concern, but it does depend on the use of the site and may also impact the client’s decisions on how they want soil managed on site. From a constructability standpoint, this could result in additional costs for management and/or import, and should be communicated early so those costs can be accounted for.

Lucas Barroso-Giachetti: Like other contaminants that pose exposure and/or groundwater leachability concerns, PFAS can be effectively managed underneath an impervious engineering control to mitigate percolation and the potential for long-term impacts to groundwater.

Elizabeth Mack: Yes, we have found PFAS constituents in dewatering effluent where there was no reason to suspect PFAS in soil or groundwater. It can have a meaningful impact on an NPDES permit (or state/local equivalent), and we’ve had to treat, containerize, and retest prior to disposal.

Steve Banovetz: Yes, on a site in New Jersey, there is a large PFAS groundwater plume. We are a third-party contractor on this particular site, but the client was able to obtain a permit from the New Jersey Department of Environmental Protection to Discharge to Groundwater. We just need to prevent groundwater from leaving the site via overland flow or discharge to surface waters. We are also doing something similar on a site in Illinois, where PFAS is just one constituent in a larger plume, where we are allowing groundwater to reinfiltrate on-site.

Elizabeth Mack: It becomes very fact-intensive. If not much is at stake, the parties may allocate on a per capita basis. But when millions of dollars are at stake, studies, experts, and mediators may be brought in.