In December 2020, the chemical industry publication, Chemical Watch 1, reported that New York had joined Washington and Maine in passing legislation restricting the use of per- and polyfluoroalkyl substances (PFAS) in food packaging. The significance of enactment of this and similar PFAS-related contaminant-of-emerging-concern (CEC) legislation at the State level cannot be understated. With the writing on the wall, major companies such as Amazon have taken steps to eliminate PFAS compounds in their Kitchen brand products.2
This edition of HETI Horizons looks at the present complex relationship between CECs, regulations associated with those chemicals, and the efforts of the environmental management industry to stay in step with assessment and remediation requirements. Perchlorate and 1,2,3 Trichloropropane are CECs which have been discussed in previous issues of HETI Horizons. PFAS, which are the latest CECs with developing environmental regulation and wide-ranging implications on the manufacturing and real estate industries, are discussed here.
Contaminants of Emerging Concern
A CEC is a chemical which has been identified as having a potential environmental or public health risk. As in the case of PFAS, these chemicals or materials have been part of industry and manufacturing for decades, but have recently come to the attention of the scientific community and regulators due to advances in analytical methods and toxicology research. These analytical advances now allow for identification of extremely low concentrations, in some cases in the “parts per trillion” (ppt) range, which are the equivalent of a fraction of a drop in an Olympic-sized swimming pool. With such data, contaminant toxicology – the study of how the contaminant affects humans and wildlife – has also kept pace in linking the “emerging” chemical to public health effects. Historically, such identification of potential adverse threats is followed by development of strict standards for the protection of human health and the environment.
A family of thousands of chemicals, PFAS are slippery, soap-like substances historically used in the manufacture of Teflon® pans, Scotchgard™, and hundreds of other materials since the 1940s. The chemistry within this group can be complex; but the two most recognizable PFAS consist of fully fluorinated carbon atom chains, which create an inherently stable contaminant with chemical bonds that are some of the strongest in nature. However, the same chemical properties that were so important to commercial success create significant challenges to site remediation when introduced to the environment. Current understanding is that the primary route of exposure to PFAS is ingestion via potable water, so drinking water and, in many states, groundwater regulations have been enacted. Only 16 states presently have enforceable standards for soil.3
Regulating PFAS
Regulation of this family of chemicals is rapidly developing, led mostly by individual states. At the Federal level, the U.S. House of Representatives has passed legislation, known as the PFAS Action Act – potentially paving the way for the Environmental Protection Agency (EPA) to regulate PFAS as a hazardous substance under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This could not only have significant implications with federally-funded Superfund cleanups, but also on the inclusion of certain PFAS in the ASTM Standard for Phase I real estate transaction investigations.
The potential long-reaching effects of this proposed legislation are significant. However, citing “implementation challenges”, this bill has met significant headwinds in the Senate. In the absence of Federal legislation, 23 states are in the process of writing their own guidance and regulation to address drinking water contaminated by PFAS.
In November 2020, the Massachusetts Department of Environmental Protection (MassDEP) expanded its drinking water monitoring program for six PFAS to include voluntary sampling of private drinking water wells in 81 towns of the Commonwealth.4 In New Jersey, with its proud heritage as a major industrial center, DuPont, Chemours and 3M were all leaders in the production of PFAS. Accordingly, New Jersey took early action to investigate these chemicals, and the state provides a comprehensive case study for tracking how the PFAS story has unfolded. As early as 2006, the New Jersey Department of Environmental Protection (NJDEP) conducted statewide “occurrence” studies of drinking water for PFAS compounds. In one such 2009 study 5, results revealed that in 33 drinking water sources sampled across the state, “between one and eight PFAS compound was detected in 70 percent of the samples”. Similarly, the New York State Department of Environmental Conservation (NYSDEC) has classified PFOA/PFOS as hazardous substances and now requires that 21 PFAS compounds be evaluated at all sites in state cleanup programs and in imported soil.
Source Identification and Treatment Technologies
PFAS compounds are bio accumulators, and if ingested they remain in fatty tissue and can increase in concentration as they move up through the food chain. The Interstate Technology and Regulatory Council (ITRC), a leader in PFAS research, has reported no evidence of significant natural breakdown of PFAS compounds in the environment under either aerobic or anaerobic conditions. PFAS plumes may stretch for miles from the contaminant discharge location due to PFAS’s high mobility, which can make containment and source identification difficult.
With natural processes providing no assistance, remediation technologies for PFAS cleanup of groundwater continue to be developed; but only a few have been field-proven.6 A combination of treatments may be necessary to treat the PFAS most cost-effectively. Among the promising players in the remediation technology space are granulated activated carbon (GAC) for both in situ and ex situ applications, and ion exchange resins – which have both been field-tested.
Risk Assessment Services from HETI
At HETI, we are closely monitoring the rapidly-evolving suite of issues that surround these contaminants of concern and the potential impact they may have to our clients. Product liability and environmental claims are piling up – with some resulting in nine-figure outcomes. Given the ubiquity of the chemical in manufacturing, a PFAS risk assessment should be considered in most industrial operations.
We have assisted clients in the development of risk management plans to better understand potential liabilities. HETI’s goal is to serve as a valued resource of PFAS risk assessment/identification to our clients. Finding common ground between our clients’ objectives and meeting the regulatory requirements in this dynamic technical and legal environment is our goal. With the right team, proper planning, and a measured technical approach, the odds are greatly improved for achieving this balance.
References:
1 Hyland, T. (Ed.), December 3, 2020, New York Governor Signs Bill to Ban PFASs in Food Packaging, https://chemicalwatch.com/187578/new-york-governor-signs-bill-to-ban-pfass-in-food-packaging
2 Bandoim, L. (2021, January 14). Amazon bans toxic chemicals from its food packaging. Retrieved February 02, 2021, from https://www.forbes.com/sites/lanabandoim/2021/01/14/amazon-bans-toxic-chemicals-from-its-food-packaging/?sh=5fa4fc952d31
3 ITRC, November 2020, PFAS – Per- and Polyfluoroalkyl Substances, https://pfas-1.itrcweb.org/fact-sheets/
4 Stolfa, M. R., December 15, 2020, Massachusetts Department of Environmental Protection to Sample Private Wells for PFAS, https://www.lexology.com/r.ashx?l=9CMHNRH
5 Walsh, L., Bonnette, L., & Dillon, A., April 2014, Occurrence of Perfluorinated Chemicals in Untreated New Jersey Drinking Water Sources, https://www.state.nj.us/dep/watersupply/pdf/pfc-study.pdf
6 Mueller, B., & Yingling, G, September 2020, PFAS – Per- and Polyfluoroalkyl Substances, https://pfas-1.itrcweb.org/12-treatment-technologies/