Dane: Hello, and welcome, everyone. My name is Dane Menke. I am the digital marketing manager here at REGENESIS and Land Science. Before we get started, I have just a few administrative items to cover. Since we’re trying to keep this under an hour, today’s presentation will be conducted with the audience audio settings on mute. This will minimize unwanted background noise from the large number of participants joining us today. If the webinar or audio quality degrades, please refresh your browser. If that does not fix the issue, please disconnect and repeat the original login steps to rejoin the webcast. If you have a question, we encourage you to ask it using the question feature located on the webinar panel. We’ll collect your questions and do our best to answer them at the end of the presentation. If we don’t address your question within the time permitting, we will make an effort to follow up with you after the webinar. We are recording this webinar and a link to the recording will be emailed to you once it is available. In order to continue to sponsor events that are of value and worthy of your time, we will be sending out a brief survey following the webinar to get your feedback.

In today’s presentation, we’ll focus on collateral consequences of identifying PFAS as a CERCLA hazardous substance. With that, I’d like to introduce our presenter for today. We’re pleased to have with us Ned Witte, attorney and shareholder with a Godfrey & Kahn environmental strategies practice group. Ned has broad nationally recognized experience and counseling clients concerning the emerging contaminants per- and polyfluoroalkyl substances or PFAS, including PFOA and PFOS. He represents clients with interests in numerous PFAS sites in Wisconsin including at disposal sites, manufacturing sites, and locations where PFAS containing aqueous film-forming foam or AFFF has been discharged. In 2020, Ned was selected by the Biden-Harris agency review team for the United States Environmental Protection Agency to consult on PFAS issues. He also serves as a member of the Wisconsin Department of Natural Resources PFAS policy advisory group. All right. That concludes our introduction. So, now I will hand things over to Ned Witte to get us started.

Ned: Thank you, Dane. Pleasure to be here today. This is Ned Witte. I’m actually speaking with you today from Green Bay, Wisconsin, and talking to you about an important topic. There’s been so much happening and changing recently with regard to PFAS. And I think we’re here to talk about the specific topic of, “Identifying PFAS as a CERCLA Hazardous Substance.” But there’s a lot to unpack and address as we get into that, including the recent promulgation by the United States Environmental Protection Agency of its PFAS strategic roadmap, identifying its commitments to action for the next three years. So, I’ll be talking about that. But I wanted to thank REGENESIS for putting together this webinar today and the great promotion and organization that they have here. It’s really a pleasure to work with the team and putting forward this presentation for you today.

What we’re gonna be doing today, and I will give you just a brief background on how we’re gonna be covering these topics. But after I get through with this introduction, I will do a quick refresher of PFAS just to catch us all up and talk a little bit about where it is and how it is showing up, some recently developed information about the prevalence of PFAS, and some new sources of PFAS that are getting into the environment. We’ll talk about some toxicity issues, and that’s gonna be an important part of the roadmap, which I’ll be talking about a bit later. But then, of course, I really do wanna talk about how the federal government and state governments have been addressing the topic of PFAS and regulating PFAS as a hazardous substance. There are several pieces of pending legislation that are working their way through the United States Congress. I think with all congressional efforts, we’re a little skeptical about whether and how they’re gonna make it through.

But in the meantime, as I mentioned, on October 18th, the U.S. EPA came out with its own strategic roadmap. And I think that if one had to kind of pick a horse in this, I think that we probably would look to the EPA as being the entity that probably is gonna be able to move forward a little bit more quickly and potentially put some of those proposed regulations and proposed actions into place. A key element of that is going to be identification of PFAS as a CERCLA hazardous substance, and I think that that’s really what is marshaling an awful lot of interest in this presentation today, is understanding some of the ramifications and consequences. The impacts on litigation, transactions, brownfield redevelopment and other activities and practices that so many of you in the environmental field have been keeping track of and being aware of. And we’ll finish up with some best practices just to talk about how we can move forward with some of these important issues.

A quick background and review of PFAS. PFAS is the acronym for per- and polyfluoroalkyl Substances. It is as represented here in this image of eight or six or sometimes fewer carbon atoms with the fluorine atoms attached to it. Apparently, a product that was accidentally discovered by a chemist working at 3M in 1938. And upon discovering it, you know, the realization was that it had very unique properties because of its ability to repel water, oil, and fats. It was also heat and fire-resistant and friction-resistant. So, there were many different applications that it could potentially work its way into, and I’ll talk about some of those on the next page, but really has become, you know, nearly ubiquitous in a lot of different functions, but also because of that, it’s become a substance that we’ve been uniformly exposed to. And so that is where the concern lies is the intersection of the toxic properties that PFAS has and the fact that it gets into the environment and into us, and then is very either bioaccumulative or very resistant to break down. So, it winds up sticking around for a long time, hence the name forever chemical. And I’ll talk about that a little bit more.

Okay. So, a lot of these things that you’re seeing here, pictures of, are things that we have all lived with, grown up with, and, you know, became sort of conveniences of modern society, things that would make life easier. I think that might have been one of the acronyms or one of the taglines for some of the companies that made these products. But Scotch-Gad and Stainmaster to repel water and stains. Gore-Tex, that miracle of a breathable waterproof fabric was really dependent upon PFAS being a component to enable those functions. Teflon pots and pans. Really, their nonstick function is dependent upon PFAS. And we’ll talk a little bit about one of those manufacturers who is in Wisconsin where we’re dealing with some of the legacy contamination associated with that. It even finds its way into fertilizers and into our lawns, Milorganite being the name of a product that is produced by the Milwaukee Metropolitan Sewerage District in my hometown.

Food packaging. If you want your wrappers for fast food or for pizza to enable a nonstick or sort of an easy, you know, access, then PFAS has unfortunately been a part of that. It’s in cosmetics and pesticides and things that we, you know, put on our very skin, which is pretty alarming. And then as I mentioned, surfactants, including a discovery that we’ll talk about in a minute within the last several weeks about the prevalence of PFAS in fracking fluids for the exploration and extraction of natural gas. One of the more prevalent applications is in aqueous film-forming foam or AFFF. That is the product that you see sprayed in chemical fires or flammable fires or fires involving aircraft where you need to put a fire out. AFFF is very effective at that. It’s actually part of the military specifications required to be utilized, but the problem is that it runs off of the airport or runs off of the test areas, finds its way into the soil and the groundwater, and really does not break down.

Another kind of lurking issue, I think, is the existence of Class B firefighting systems. They are systems that have been employed at commercial facilities where there’s a risk of a fire and a flammable fire or a Class B fire. But periodic testing of those systems has been kind of the natural standard. And as a result, we have situations where PFAS has probably been released many times over in situations like that.

As I mentioned, you know, one of the recent discoveries has been the identification of PFAS in drilling and fracking fluids as part of the hydraulic fracturing exercise. This is a graphic that came out of “The Guardian,” and it identifies the prevalence and the kind of the clustering of PFAS sites in the United States. The number itself is something that is of note because that number that was developed by The Guardian through FOIA evaluations is something near 10 times the number that had been previously estimated. So what we’re seeing is that it’s very concentrated in some of the areas where that hydraulic fracturing has been exercised. But I think that if you look across the country, you’ll see that it’s pretty much in every state. Rough math suggests that, you know, we may have over 2000 in every state, and I think that that probably is not gonna be the last we hear of this.

How it winds up finding its way and exposed to human health and the environment is through a myriad of different concerns. PFAS manufacturing, by that I mean, you know, the actual production of the chemicals, which has taken place in a number of different locations around the country. Minnesota, North Carolina, West Virginia are some of the more sort of noted locations where this occurred. You had workers directly exposed to it or you had disposal of materials containing PFAS that got its way into the groundwater and led to some exposure in those areas. Downstream manufacturers, and by that I mean, kind of the next wave of entities who took those PFAS products and then utilized them in commercial manufacturing activity. So application of Teflon to those pots and pans. We have a city in our state, Manitowoc, which is home of one of the larger aluminum pots and pans manufacturers that applied Teflon. It really was kind of the boom for their business, was the non-stick function.

But we’re working today on trying to deal with the legacy of that use over time. Leather treatment, many of you are probably aware of the Wolverine site in Michigan. The application of PFAS products to leather in order to make it waterproof left a lot of spills of PFAS products over time. And then AFFF manufacturer, there are a number of different businesses around the country that are responsible for making most of the products that have been used as aqueous film-forming foam. So those are sites also where there’s a widespread presence of PFAS in the soil and groundwater. Also, landfills have become, obviously, a very significant site for the presence of PFAS because of disposal of materials that contain PFAS. So, if you had a Stainmaster carpet and you had it changed out of an airport or a hotel or some other convention center, that material once disposed of in the landfill will ultimately leach some of those PFAS out and it finds its way into the leachate of the landfill and then be, you know, some of the state of the art for management of leachate is to send it to a publicly on treatment work.

POTWs have not been really designed and equipped to remove PFAS from the wastewater effluent stream. And so, therefore, it either finds its way into the discharge from a POTW or into the biosolids that the POTW generates. Those are sludges and materials. And again state of the art on that has been either to send the sludges back to the landfill or to use them as a fertilizer, otherwise known as biosolids, and spread them on agricultural fields or farm fields where it is perhaps uptaken into the material or into the livestock that might consume those products. So, it’s kind of a cycle of a problem. And then we also have, of course, as I mentioned, the AFFF at airports, military, a broad source of concern, and Class B firefighting systems around the country as well.

This is another graphic from “The Guardian” which I think is interesting. I think that prior to the time that they came out with their study, which also has been picked up recently in “The New York Times.” But prior to the time that this focus on oil and gas extraction work was done, I think that, you know, would have been kind of not as prevalent on this chart. So I think that this gives you some idea of the different locations where industrial application and use of material has shown PFAS to be present. I think that the term that has been used of forever chemicals applies not only really to sort of the presence of it in the environment, but also the difficulty that exists in trying to destroy or dispose or eliminate PFAS at the end of the process. And so I think that’s gonna be something else that’s gonna be an ongoing challenge.

A big part of the PFAS roadmap that EPA put out recently is on research and studying and trying to understand better, you know, the toxicology and the health hazards associated with it. So I would say that toxicology is still evolving at this point, but we do have enough information to understand that PFAS can cause developmental effects for fetuses and infants, cancer impacts to the liver, thyroid, and immune system and high cholesterol. And I think that the sorry state is also that it’s already affected most of us. I mean, it’s in…according to a test conducted in 2011-2012 period, the Center for Disease Control has confirmed the presence of PFAS in 95% of persons who have been tested. So, it’s something that is in us and around us and now we just have to figure out how we’re gonna move forward and manage that.

Okay. Shifting gears and talking about regulation of PFAS. Federal regulation has been, you know, not up to speed so far. 2019, the former administration’s EPA promulgated the PFAS action plan, included, you know, objectives and aspirations to achieve certain milestones or targets, including the development of a maximum contaminant level for PFAS and also identifying PFAS as a CERCLA hazardous substance. I think that the EPA’s, you know, intentions were good. I think the former administration was really more focused on deregulation than on creating new regulation. And even though I think it was acknowledged that this was a tremendously important issue, it really did not get the attention, and so it pretty much was passed on to the current administration. The only standard that really has existed and it came out of the U.S. EPA during that time was the standard identified here of a health advisory level of 70 nanograms per liter. And for those of us who’ve been in the environmental field for a while, anything that is sort of getting down below a level of parts per billion is, you know, infinitesimal. But here we’re talking about something that is a health advisory level, a non-binding level of 70 parts per trillion for PFAS. And as I have during my illustration, that’s a very small number. So it creates tremendous challenges as far as measuring, analyzing, reporting, and relying upon that information, but extremely small number as I indicated.

But things have been moving a little bit more of late. So, we now have several efforts at the federal level to regulate PFAS and to develop legislation to address PFAS. The House of Representatives passed a piece of legislation, moved it on to the Senate called the Comprehensive PFAS Action Act. And there are some measures and steps that are in there that if implemented would be very significant. It does include a proposal for designation of PFOA and PFOS, some of those longer chain PFASes as hazardous substances within one year, and then a five-year track for analyzing other PFAS compounds. It also sets forth the program for including PFAS in a number of different regulatory programs, the Safe Drinking Water Act, the Clean Water Act, the Toxic Substances Control Act, and then also in the midst of that there the Clean Air Act. And I think that’s a significant one to note as well because under the language of the PFAS Action Act, there would be a six-month timeframe after passage of identifying certain PFAS compounds as hazardous air pollutants. And the significance of that is that that would actually bring in PFAS into identification regulation as a CERCLA hazardous substance because as we’ll discuss in a little bit, CERCLA actually identifies hazardous substances by reference to other laws including the Clean Air Act. And so that would be sort of a faster track than the one-year that was identified above.

The other things that have been happening at the federal level, the U.S. Infrastructure Bill that came out of the Senate, but is still mired in debate and attention. It does include $10 billion for PFAS response, very significant, but I think that we’re all watching that and wondering what the fate of that legislation is ultimately going to be. The new administrator of the U.S. EPA, Michael Regan, also established an EPA Council on PFAS, and really is coming out of that, that we now have the U.S. EPA PFAS strategic roadmap coming forward from that exercise. Just background, I think most of you probably know this, but Michael Regan was former chief administrator of the North Carolina Department of Environmental Quality. So, again, I mentioned before that North Carolina was one of the sites of PFAS manufacturing. Chemours, the spin-off company from DuPont is located there. And there have been long-standing concerns about the presence of PFAS affecting the Cape Fear River, which is a drinking water supply for significant populations. And so, you know, he really came from a landscape of having dealt with and familiarity with PFAS. And I think that, you know, having made PFAS a centerpiece of his EPA, you know, I think now what we’re seeing with the roadmap that came out on October 18th, you know, the beginning of this exercise.

So, these are some of the sort of pillars, if you will, of the three-year roadmap approach that EPA has identified. First, consider the PFAS lifecycle. And by that, you know, when you read into the text that is included in the roadmap, this really includes, you know, an awareness of a generation of PFAS, the ongoing presence of PFAS, how it is managed over time, and ultimately how it can be disposed. And one of the things that’s pointed out that I think is important in this is that EPA notes that, you know, at every one of those stages, there is a potential for release of materials, you know, whether that might be initial production or handling or ultimate disposal. And so those are things that the agency is trying to get its arm around. Getting upstream to the PFAS problem is really about prevention, but also leveraging the Toxic Substances Control Act or TSCA to try to develop much broader understanding of where PFAS is generated, what the hazards are, and how to manage that in the myriad of programs and regulations that are available.

Holding polluters accountable. We’ll talk more about that with time, but, you know, I think this is gonna be something that, together with the identification of PFAS as a CERCLA hazardous substance, I think is gonna really be a focus for all of us as we move forward. The toxicology is the element of ensuring science-based decision-making. The EPA is prepared to invest money into really understanding where the gaps are and how to address the science behind PFAS in order to have that influence the actions that, you know, are going to be taken to try to regulate these products going forward. And then the environmental justice element is recognized as well with prioritizing protection of disadvantaged communities. And, you know, again, there’s kind of this triumvirate of activities here of research, restrict, and remediate going forward. So, kind of a different song coming out of the EPA that I think we’ll hear going forward.

What I wanna do is go through the different elements of the strategic roadmap and talk about them just briefly. I don’t wanna go too deep into the weeds in this. But I think that it’s important because I think that this is how we begin to understand what the initiatives are and what you think about that these are things that the agency is gonna try to address and cover in the course of three years. It’s really, you know, a tremendously aggressive program. So the Office of Chemical Safety and Pollution Prevention has a number of different activities that they’re gonna be undertaking in national PFAS testing strategy where they will be basically leveraging, as I said before, TSCA, in order to understand on a much more broad basis the presence of PFAS and where it is and what the hazards are that are associated with it. There’s gonna be also review of new PFAS products and prior decisions that have been made under TSCA related to PFAS. And some of those are these significant new use decisions that have been made in the past. EPA really kind of reviews this function as being sort of a gatekeeper.

I think there’s a concern that, you can read into the standards there, that there’s been kind of a concern about the low volume exemptions that may have been issued in the past for some of the PFAS products. There’s also gonna be a desire to kind of renew the review of materials that have just sort of slipped off the radar a little bit. And that’s under these abandoned chemicals or abandoned uses under PFAS. So, again, if you note the timing that we’re talking about, some of these things are, you know, moving forward and expected to just get started in the next summer. There’s also gonna be enhanced TRI reporting of PFAS. This is beefing up TRI reporting in order to generate a much broader database for chemicals of special concern. That’s part of the element as well is that EPA is trying to basically elevate PFAS into a zone of much higher attention. And then there’s also going to be focus on the data collection. Going back, the date that’s identified is 2011. Looking at uses, production volumes, disposal, exposures and hazards related to PFAS products since 2011.

So, I think, you know this, this particular element of the strategic roadmap has gotten a lot of attention because this is leaning on business to generate information which the U.S. EPA will utilize in developing some of its regulations. But I think that there’s a pretty broad expectation of having a business report up through the TSCA program. Next broad area that the roadmap addresses is under the Office of Water, a key component of the EPA’s program addressing PFAS. So, there’s gonna be an expectation of nationwide monitoring for PFAS in drinking water with a rule that might be coming out this fall. And then the unregulated contaminant monitoring rule, series five, monitoring going forward starting in 2023 through 2025. So, as many of you know, that process basically would require all municipal water supply systems serving greater than 3300 people, and then they’re gonna also identify a sample of water supply systems for less than 3300 people to collect samples and submit those in. So that’s where that monitoring data is gonna come from.

And then as a result of that, EPA will go forward and expects to promulgate by the fall of ’22, a year from now, national primary drinking water regulation for PFOA and PFOS with, again, the promulgation a year from now and developing a final rule in 2023. This is a big deal. This is basically where a groundwater standard would be developed at the federal level. And then, in addition to other activities that would be taking place under the Office of Water, a toxicity assessment and health advisory for the short-chain PFAS compounds and for additional PFAS. And this is basically to say, yes, we’ve been focusing on PFOA and PFOS, but we want to look much broader at the other issues. And also when you read into the narrative that comes with this, there is an environmental justice issue that’s affecting this as well with the concern that disadvantaged communities have been exposed unnecessarily to PFAS, particularly as it relates to some of these GenX compounds.

Other activities of the Office of Water that will be attended to developing what they call multifaceted effluent limitations. And by that, they mean looking at a lot of different industrial sources of PFAS that may be present in the wastewater discharge in order to develop kind of prevention and prevention activities based upon that research. So, some of the categories that are being evaluated include organic chemistry plastics, synthetic fibers, electrical and electronic component manufacturing, landfills, leather finishing, plastics paint, pulp and paper, and airports. So, as you can see, it is truly multifaceted. And other elements that are included in this would be to leverage National Pollution Discharge Elimination System permitting to try to reduce PFAS in the discharges. That would be restricting and preventing PFAS discharges and developing guidance for states to utilize to include in PFAS monitoring in their state discharge elimination system programs.

And the EPA also wants to take the existing multi-laboratory validated analytical methods for 40 PFAS that has been coming out late this year, but then pick that up and run with it, expand it so that it would be broader and would be available for a much more broad application, and then updating some of the drinking water test methods as well. Finally, as it relates to the Office of Water, there would be also an effort to try to recommend ambient PFAS water quality criteria. And then starting in the summer of next year, a much more intense focus on the presence of PFAS in fish tissue. And that would be mostly around the area where I’m located here in the Great Lakes and large rivers. But concern about the existence of PFAS bio-accumulating in fish and the consumption of fish and so, therefore, recognizing this as a direct concern that may be present. And then finally finalizing a risk assessment for PFOA and PFOS in biosolids. I’ll admit that I wasn’t aware until I was reading through the strategic roadmap that this is really a Clean Water Act function.

It makes sense since it’s coming out of the publicly-owned treatment works. But this would be an effort to try to understand the existence and concentration of PFAS in biosolids and then potentially developing regulations to address those concentrations sometime within the next two years. Coming up to the big ones now. The Office of Land and Emergency Management elements that are addressed in the PFAS strategic roadmap, designating certain PFAS as CERCLA hazardous substances. This would be for PFOA and PFOS with a proposed rule expected early next year in spring of 2022, and then finalizing that rule a year later in the summer of 2023. There would also be a advanced notice of proposed rulemaking on other PFAS under CERCLA expected in the spring of 2022. As some of you know, you know, the number that is used for how many PFAS compounds are there, maybe somewhere around 5000, give or take. So this is a long list that’s gonna have to be attacked. And then issuing a guidance on PFAS destruction and disposal.

In December of 2020, there was a document or a regulation that was issued by EPA identifying some preliminary destruction technologies. But I think that there’s a lot more work to be done on that. Those technologies generally were underground injection and deep wells, disposal of materials into subtitle C, hazardous waste landfills, and disposal into subtitle D, solid waste landfills. But the process is that these need to be reviewed every three years. And this came out of the National Defense Authorization Act. So, by fall of 2023, there would be a review of those standards. And I think we’ve already seen a lot of sort of innovation and effort to try to address these. There’s concern about, you know, transfer of medium that if you basically either, you know, and train it in granular activated carbon and dispose of that or do anything else with it, it’s basically you’re just moving it from one place to another. So, I think there’s a tremendous interest in trying to find methods that would destroy the PFAS. But again, I just wanna highlight that, you know, really is the identification of PFAS as a CERCLA hazardous substance which we’ll be talking about much more in a few minutes as a significant concern.

The other areas that the PFAS strategic roadmap that you need to note, there’s efforts under the Office of Air and Radiation to identify and deal with PFAS to build a technical foundation to address it in air emissions. And this would be to identify sources, identify monitoring approaches, fate, and transport, and try to identify efforts and ways to try to mitigate. And then the Office of Research and Development has certain elements which would include developing methods to detect and measure PFAS in the environment, almost sort of as a… Where is the present? How is the present? How uniform and ubiquitous is it? And one of the ideas here that I thought was interesting also is development of a total PFAS measurement tool, which kind of brings to mind, like, a total Aroclor or a total PCB analytical program. The other elements that are under research and development would be advancing science to assess human health and environmental risk. That would basically be going through the Integrated Risk Information system or IRIS. And then developing technologies for reducing PFAS in the environment.

And then some important cross-program efforts. And this is my last slide on the roadmap. But this would be engaging with affected communities in order to understand where PFAS might be present. And I thought this one, you know, caught my eye using enforcement tools to better identify and address PFAS releases at facilities. When they get into the detail on this, the EPA says that they’re gonna use all available tools to address imminent and substantial endangerments underutilizing RCRA, TSCA, Clean Water Act, Safe Drinking Water Act, and CERCLA, inspections information requests. So, kind of rolling out the full artillery. There also would be an effort to accelerate public health protections by identifying PFAS categories, basically, sort of taking that huge list and trying to make it a little bit more manageable by lumping some of those different PFAS compounds into more manageable bites. The concept of establishing a PFAS voluntary stewardship is basically asking industry to step up, do more frequent reporting, share information with the agency. And I think there’s an effort to try to be a little bit more forthcoming from industry and business. There’s an element of educating the public on PFAS risks, including the name that was used in that of utilizing explainers to come out and help the public understand more about PFAS. And then a program going forward for annual public reports on the PFAS roadmap progress beginning about a year from now.

Okay. So, get to the topics that we wanna talk about here. Listing of PFAS or identifying PFAS as a CERCLA hazardous substance. And I thought it might be helpful just to take a slide here and just identify what is a hazardous substance and how is it identified? So, under CERCLA 101(14) defines hazardous substance by referencing other environmental statutes. So, it basically says, you know, if a substance is identified in the Clean Water Act as a toxic pollutant, Clean Air Act as a hazardous air pollutant, under the Resource Conservation Recovery Act as a hazardous waste, or under TSCA as an imminently hazardous substance, those categories of materials under those other statutes are brought in and are recognized as hazardous substances under CERCLA. There’s an additional set of materials or elements that can be also identified as hazardous substances. And that’s laid out here. And I have the definition just because I thought it would be kind of helpful to see that. But the administrator may promulgate regulations designating as hazardous substances. Such elements, compounds, mixtures, solutions, and substances, which when released into the environment, may present a substantial danger to the public health or welfare or the environment.

And then they also has an element, as we all know, of reportable quantities. And I am assuming that when and if the EPA goes forward with identifying PFOA and PFOS as CERCLA hazardous substances, that we’ll also be identifying reportable quantity thresholds for those substances. So last point on this slide is just that we have about 800 current CERCLA hazardous substances out there. And so, PFOA and PFAS would be joining that list. So, what I want to do in the remainder of the presentation is go through these topics, you know, kind of headings, and then talk about them each a little bit and sort of talk about some of the consequences, ramifications, and, frankly, questions, you know, about what does this gonna mean and what’s gonna happen with this? But the areas that I wanna focus on are the federal maximum contaminant level identification, release notification and responsibilities.

That would be, you know, once we’ve identified our cues for these materials, the effect on existing CERCLA sites if PFAS is regulated as a CERCLA hazardous substance, the influence on PFAS cleanups across the country whether or not that might be a CERCLA site, the interrelationship between a federal regulation of PFAS as a CERCLA hazardous substance and state activities. New PFAS CERCLA sites. Will the identification of PFAS in the soil or the groundwater move a site into being a CERCLA site? The impact on existing litigation. The impact on transactions of having PFAS identified as a CERCLA hazardous substance. The particular impact that this is gonna have on municipalities and the possibility of any exemptions that might be created, more likely under the PFAS action act and under federal legislation than under the PFAS strategic roadmap. But I think it’s important to think about those exemptions because what would happen if we don’t have exemptions?

Okay. So, first, thinking about establishing a maximum contaminant level. I think the significance here is that in my practice and in your practice, we probably used some of those MCL numbers as being kind of a line of demarcation. If a concentration of a product of chlorinated volatile organic compound or an inorganic, you know, metal is above an MCL, that’s significant and we pay attention to that. And that triggers activities or responses based upon whether we’re in a transaction litigation, cleanup context, or whatever else it might be. So I think that establishing an MCL for PFOA and PFOS is significant because it will create a brighter line for us to work with. And here in my state, we don’t have groundwater standards right now. We have proposed standards, but we’re still probably two years out. The Department of Natural Resources has been kind of regulating to those, much to the dismay of certain parties, but it would be, I think, clarifying if we knew that there was a number out there that represented a federally promulgated MCL. But again, it does create a red line for remedial actions.

So, I think this is gonna have some impact on transactions and it’s gonna have some impact on remediation projects and determining how clean is clean and are you done? Those numbers that are the MCLs for PFOA and PFOS will be quite determinative. It does create a presumption also of a health hazard. And so I think in situations where you have a consumption of drinking water, consumption of groundwater for drinking water, and you have concentrations of PFAS, if you are below, you know, a proposed MCL or a promulgated MCL, then that’s gonna be, you know, something you can rely on. But again, any exceedance of that is gonna change things. But one of these questions… And you’ll see that I repeat some of these questions in my slides addressing these topics. But how do we address the background, the ubiquity of PFAS? I’m working on a site right now where we’re kind of finding PFAS in places we never expected to see it. And I think it is an area-wide problem that I think we’re gonna have challenges managing. And I think there’s also, last point that’s not here is, how do we sort of harmonize the federal standard with state standards if we have state standards but where we don’t have state standards? So, I think there’s gonna be a lot of work there.

Next, release notification responsibilities. Again, I assume that there’s going to be an RQ that is identified with the identification of PFAS as a CERCLA hazardous substance. That’s gonna, obviously, you know, change the game as far as reporting releases. And if the PFAS MCL is somewhere near what the health advisory level is now of 70 parts per trillion, what are we gonna see is going to be the RQ? Is it gonna be commensurately small? Is it gonna be that low? And, again, I sort of say a little bit facetiously, will a PFAS detection be equivalent to something like an RQ release? Because if we’re talking about something that, you know, we’ve never seen substances regulated in, you know, two-digit parts per trillion levels, so how much is it going to trigger or release a reportable quantity standard? And furthermore, how do we deal with the, again, the ubiquity of PFAS? It’s gonna be present in so many different samples. Is that going to be something that gets factored into understanding the obligation to have a release reportable notification?

What effect is there gonna be on existing CERCLA sites? I’m already seeing and I think probably a lot of you are too that in the five-year review process for sites that are either closed or under, you know, sort of, in a monitoring program, that when the EPA comes back on a five-year review cycle, they’re asking for PFAS to be included. I think it’s a given. If PFAS are identified as a CERCLA hazardous substance, then we’ll see that happening all the time. One of the things that, you know, I think most of us are concerned about also is what about reopening sites? If there’s a site that’s already been closed, but there’s a concern related to the disposal activities that took place and the possibility that PFAS could have been among those products that were being used, is it going to be something that triggers the reopening of a site? If we deal with this in the context of a sole party that was responsible, that’s, I suppose, one thing.

I think there’s gonna be a lot of heartburn about reopening sites. But imagine the situations where we’re dealing with multi-party sites, you know, that these parties entered into consent decrees, AOCs, they have PRP agreements that are very detailed, they settled out and released de minimis parties. If we reopen a site like that, I think that sounds like a real cluster as far as trying to figure out how to sort of reshuffle the deck and figure out who’s responsible for what. It’s gonna have an impact on private party agreements too. And this is, you know, no surprise, but if you had agreements that were put in place with indemnities in the past and now someone is saying, “Well, wait a minute. I’m suddenly being required to address a situation that we hadn’t anticipated before, but you agreed to indemnify me for circumstances like that.” That too is gonna be a cause for a lot of disagreement and concern. Natural resources damages. I think, you know, we’ve already seen in the state of Minnesota that the numbers can be staggering in the millions and hundreds of millions of dollars for addressing PFAS contamination. Even on a smaller level, though, I think the natural resources damages from PFAS could be a significant concern for existing sites.

And finally, I think, you know, the pace of cleanups is something that is a bit of a concern too because it’s not that we have a process right now in place to deal with PFAS, but it’s gonna be challenging to manage this in an efficient way going forward. The influence on PFAS cleanups in general. I guess the good thing and the bad thing is that we’ll have a federal MCL to rely upon. But again, as the relationship between state and federal governments go, in cleanups, you know, there is an opportunity sometimes to rely upon ARARs, Applicable and Relevant or Appropriate Requirements. If we have a state standard that’s more strict than the federal standard, once it’s promulgated, how do we harmonize those? What’s the standard going to be going forward? Are we going to presume that there’s going to be a heavier U.S. EPA lead on PFAS cleanups, not unlike the way that PCBs are handled and basically sort of a significant difference to the federal government under the TSCA program?

One thing that I’m seeing already and many of you may also is that it’s challenging to conduct a discreet and sort of effective PFAS investigation because of the interference in the myriad of compounds that are out there. And in my context, in the state of Wisconsin, the matters I’ve worked on, also the lack of regulation, the lack of even promulgated standards for some of these compounds that are showing up in detection. And again, you know, environmental justice comes in one more time because it’s really a concern as far as how we clean these sites up and where these sites are located. The relationship between state and federal governments, I’ve touched on that several times, and these are some of the points that I’ve made before. But, you know, one thing that is highlighted here and the third point is that certain states kind of defer to and rely upon the federal government’s identification of hazardous substances. So, in some cases, if U.S. EPA identifies PFAS as a CERCLA hazardous substance, it basically sort of kickstarts the state’s program for regulating PFAS also. Some of those states may already… I think New Jersey is one of those. Some states may already have PFAS standards identified, but I think that it’s going to be a significant influence as we move forward.

New PFAS sites. And I think this is an important slide. The federal government indicated…the EPA indicated in the PFAS strategic roadmap that it wants to use all available tools. And I think that, you know, the ones that we all come to think of immediately are the authorities that the federal government has under CERCLA. The issuance of unilateral administrative orders under section 106 of CERCLA and section 107 cost recovery actions. So, it’s gonna be something that, you know, I think will begin to see significant traction. On the private party side, the parties have certain authorities as well. Cost recovery under 107 and contribution under 113 depending upon the context of the government’s relationship to those circumstances and how the costs were incurred. But I think we’ve all seen what’s happened over the last 40 years with CERCLA, and we’re basically sort of adding some fuel to the fire here that is going to basically push forward a whole new wave of litigation related to sites where PFAS has been identified.

And we haven’t also seen circumstances yet where PFAS has been handled in the context of a standard of liability that is strict joint and several and retroactive. So a question of whether you can go back in time to prior PFAS disposal locations and bring that forward under a retroactive basis of liability. There’s gonna be, of course, a federal MCL to be developed. And then, again, here comes again the background and ubiquity of PFAS. How’s that going to affect cleanups going forward and managing this? Existing litigation. This is, again, gonna be at a very interesting area to kind of see how this plays out. But you would imagine that any situation in which PFAS is present and there is, otherwise, present litigation, you know, on the record, we very likely will see claims being amended to add PFAS, you know, to the list of potential substances that are the subject of an action between parties.

Think for a moment about the South Carolina AFFF multi-district litigation proceeding where we have over 500 cases that right now have been relying mostly upon sort of the playbook of various causes of action, you know, related to the failure of duty to warn and negligence and things like that. But now, you know, are those all gonna explode with CERCLA claims if PFAS is identified as a hazardous substance? Statute of limitations concerns, you know, might be something interesting to kind of think about as well, how that’s going to change things. And I would guess, I’d say also, that, you know, for existing claims, think about those MDLs actions. What sort of incentive does this create to suddenly look a little bit more closely at settlement to the extent that PFAS can be added and a PFAS CERCLA claim can be added to an existing claim?

Transactions. My first point here is that CERCLA really was that sort of monster in the room that scared buyers and lenders and basically sort of propelled the process of environmental due diligence and the reliance upon all appropriate inquiry. So it really was the trigger for that. And as we think about PFAS, you know, coming into this landscape and the specter of cost recovery and CERCLA liability, I think it’s gonna amplify the alarm about transactions and trying to conduct all-appropriate inquiry and appropriate due diligence. I’ve been working with a working group for the ASTM, the American Society of Testing Materials as we review the Phase 1 standards under ASTM 1527. Right now the way that that’s being considered to be approached and addressed is by recognizing PFAS and other emerging contaminants as a non-scope consideration.

But I guess what would happen if PFAS becomes a CERCLA hazardous substance, then it does get wrapped into the ASTM standard, so, therefore, it would be, you know, included in the all-appropriate inquiry and potentially avail parties to protections including the innocent purchaser defense and the bona fide prospective purchaser exemption from liability. But again, you know, for transactions, are we gonna look at reopening contracts between parties where PFAS is now identified and someone feels that they potentially have an opportunity to renew or initiate a claim based upon the presence of PFAS based on older contracts?

And finally, Brownfields. I think this has been a great area of success and opportunity. I’m concerned that PFAS could throw some sand in the gears of getting Brownfields projects successfully through. It may create some opportunities for grant money right now. There’s kind of a kink in the hose with federal grant money under the Superfund program coming to communities to leverage Brownfields projects because since PFAS is not a CERCLA hazardous substance, that money is not available. But maybe this is an opportunity, if there’s a silver lining there, to look at an opportunity to try to get U.S. EPA money for some of those Brownfields projects. But it could also trigger, you know, again, as all these other areas, revisiting cleanups either in progress or that had been completed. And have we addressed PFAS and have we done enough?

I’ve mentioned a couple of times, you know, the concern related to municipalities. Municipalities bear a fairly heavy load in this simply because it shows up in so many different areas for municipalities. We talked about the POTW, sludge management and biosolids. That’s gonna be an ongoing issue, but it also is gonna be a bit of a look back at where those biosolids have been managed and disposed of over time. And if part of the strategic roadmap includes considering biosolids as a CERCLA hazardous substance or biosolids under the overall roadmap program and under the Clean Water Act, then that’s gonna be something that I think a lot of municipalities will be concerned about. Fire departments across the country still have stockpiles of AFFF containing PFAS. And so that’s gonna be, you know, an ongoing concern and challenge for them.

I flagged that through in this bullet point just because I think it’s a really interesting one. This is a different product than a lot of other things that are regulated as hazardous substances. PFAS is present in so many of the different materials that are in our homes that are part of our sort of commercial retail products that we have. And so it’s gonna be a management issue going forward for municipalities in their solid waste stream. And that will show up in municipally-owned landfills and disposal sites. I didn’t include here airports, but, you know, a lot of municipalities have relationships to airports. Are they going to be responsible for those? And that kind of ties into this last point here. If the way that we wind up regulating PFAS as a CERCLA hazardous substance is through U.S. EPA’s roadmap and promulgation of regulations, is the EPA going to be able to carve out exempt parties? And that’s significant because that’s something that is in the PFAS Action Act, an effort to try to exempt the federal government, military, and also exempt airports. Whether or not they would make it through is left to be seen.

But if the EPA can’t do that through the roadmap, then that’s gonna be a tremendous drain on remediation efforts. But if we don’t do that, then who picks up the share from the contamination that is going to be present and emanating from federal government sites, military sites, and airports? So, again, just talking a little bit about some of the comparison between these two. Is it the best alternative to go through the roadmap and through the EPA or is it better to try to, you know, sort of see if the PFAS Action Act can make it? The legislation does allow for some tailoring of the focus. But I think through the negotiation of legislation process and also just the general sort of forecast of lawmaking, I think that it’s somewhat questionable about whether or not that’s gonna survive. The U.S. EPA action would likely be much more comprehensive across the different regulatory programs and probably a little bit more time-effective. A big question also is, how’s this all gonna get paid for? There’s an awful lot of study that goes on. Sure, there’s a lot that winds up getting kind of shifted to the industrial sector, the regulated parties, but just the same. It’s gonna be a tremendously heavy lift to try to get this all done.

There has been some discussion also about, you know, are there other sort of broader alternatives that might make some sense? An amendment to CERCLA to kind of make a PFAS-only module that would kind of get tacked on to it that would be separate from all the other parts of CERCLA, but which sort of take, I guess, the best of CERCLA that, you know, could be used for PFAS specific. And then, you know, kind of another sort of idea was, you know, what about a standalone PFAS regulation statute? It’s a very prevalent and a uniform product that we have to deal with now. It’s in the environment and it’s gonna be challenging to move forward with. But I think there’s some urgency as well. Certainly, that’s what we’re seeing when we read the PFAS roadmap.

I’ll leave you today with some best practices. I don’t wanna go through these all because we’ve taken some time today. But these are thoughts that I think that any business, municipality, regulated party can think about of how to address PFAS. It really goes through a process of evaluating current and past operations, the possibility of use of PFAS, where it might have been present, how it would have been present on the property. We’ve worked with parties that have conducted internal PFAS audits to identify where and how PFAS may be a pressing concern. Very important to work with, you know, an experienced group. I think everyone is kind of getting up to speed on PFAS and there are a lot of very talented and experienced people now in this area that really was unknown to us as few as five years ago.

Real estate and corporate transactions, the amount of diligence is critical. It’s very difficult to kind of play in the dark, though, where you don’t really have regulatory standards. So, it’s gonna be something that, you know, is gonna have to be addressed comprehensively. There are some insurance products that are out there. There’s a possibility also of, you know, looking back to older insurance and potentially renewing a claim based upon an occurrence-based policy that may have existed in the past. And then, you know, finally remediation projects are gonna be an ongoing challenge. But in the context of all of these things to the extent that suddenly we have a CERCLA hazardous substance identification, I think it changes a lot of these things because it’s certainly gonna be a different dynamic and a different playing field.

So, I’ve covered a lot today. I appreciate your time. Again, I wanna thank REGENESIS for putting this together. If we don’t have time today to answer your questions, I’m more than happy to take an email from you or a call. I’d be happy to discuss these issues with you. I always think we learn best when we kind of share ideas, so I’m more than happy to talk with you. But thank you very much for your time today.

Dane: All right. Thank you very much, Ned. That concludes the formal section of our presentation. So, at this point, we’d like to shift into the question and answer portion of the webcast. Before we do this, we do wanna acknowledge that we’re running a little bit over the hour for this webinar. We don’t wanna cut short any of this really valuable information that Ned is sharing. So, thanks to those of you who are staying on with us. If you do have to hop off, just know that we will be sending out a link to the recording right after this webinar. Also, you will receive a follow-up email with a brief survey. We really appreciate your feedback, so please take a minute to let us know how we did. All right. So, let’s circle back to the questions here. Ned, the first question is, is a business protected from liability for PFAS contamination on a property it buys if it does a phase one environmental site assessment?

Ned: That’s a great question, Dane. It is actually a kind of a moving target. And I touched on it briefly during my presentation. But right now, since PFAS is not identified as a CERCLA hazardous substance, the off-the-shelf American Society of Testing Material’s phase one would not include PFAS as a substance of concern. I think most environmental professionals who perform environmental due diligence or a phase one environmental site assessment will either advise their client that they should include PFAS as a potential concern, particularly, you know, depending upon the nature of the business, or they will also, you know, talk with the client and sort of figure out how they want to address that topic. But it’s a bit of a gap right now. So, I think one benefit of PFAS being identified as a CERCLA hazardous substance if that happens is that it does get brought into the phase one scope. So I guess my answer to the question is, not yet, but hopefully, we’re gonna get there.

Dane: All right. So, here’s another question. And this question is, can I access insurance for PFAS contamination under existing commercial general liability insurance? And what about insurance for future exposure as well?

Ned: Yeah. It’s an interesting area because it sort of requires a little bit of historical research. Most of the listeners are probably aware that in the mid-1980s, the insurance industry effectively changed the playing field and instituted what is known now as the absolute pollution exclusion. And so they pretty much said, you know, under the comprehensive general liability or CGL policies, “We’re not gonna insure for hazardous substance releases.” And so, what it would take in order to try to get coverage for PFAS would be to go back to a time prior to the pollution exclusion to find an older policy, which is an occurrence-based policy, meaning that you can make a claim for an event or circumstance that is insurable that happened during the effective term or policy of that insurance. And then, you know, basically, sort of demonstrate that the entity or the insured was protected during that period of time and basically sort of come back with a claim.

So, it takes a lot of work, but we’ve seen it done before and it’s a viable tool and there are companies out there that work on kind of archeological research and generation of insurance. As far as the part of the question looking forward, it’s really a very sort of state-specific issue and it’s also an issue that is sort of changing as we speak. It’s something that is potentially insurable, but it’s gonna also be tricky as we kind of look at different landscapes of state and federal government with developing regulations and groundwater standards for PFAS.

Dane: All right. Thank you, Ned. So, there’s another question here. And this question is, what factors might cause a closed site to be reopened to address PFAS?

Ned: Yes. And it’s interesting to talk with… I’ve spoken a lot with state regulators and they say, “Oh, no, that’s not something that we are even thinking about doing.” But I think that it is on the radar because of, particularly if PFAS is identified as a hazardous substance under CERCLA. I think the triggers for reopening a site would be several situations. One might be where there’s an awareness of a threat to human health or the environment. So, if a groundwater drinking supply became impacted by PFAS and there’s a concern that a closed site could be the source of that PFAS contamination, that could be something where the state would feel or the state or federal government would feel motivated and concerned enough that they would be willing to take kind of that extraordinary step of reopening a site that was otherwise closed. Or if there were some other, you know, clear indicator that a site was a source of contamination that was in need of remediation because of some other endangerment that might be present.

The other thing that I think that we gotta keep an eye on is transactions. The closure of a site might be good enough for the current occupant and owner of the site, but if you have a different party coming in as a purchaser who has a different risk tolerance and doesn’t want to accept responsibility, you know, that’s when you’re gonna see a purchaser, basically, you know, requiring investigation or conducting investigation and potentially identifying circumstances including PFAS, that weren’t part of the previous closure. And that might reopen a site.

Dane: All right. Thank you, Ned. So, we have another question here. And it is, if the EPA roadmap takes effect, are we heading toward a period where there might be inconsistent federal and state PFAS standards?

Ned: I think so. I think that that probably is gonna be something that’s gonna have to be ironed out. The general rule of thumb is that the federal government’s standards are sort of preeminent but then states have the opportunity to develop and promulgate standards on their own. Certain laws are a little bit more prescriptive or proscriptive about that where they basically, you know, have to have a federal approval of a state program. But I think that, you know, the other rule of thumb is that a state cannot be less stringent than the federal standards. So I think that if the, you know, depending upon how this plays out with the federal MCL, I think that if it is consistent with a state standard or if a state standard is more stringent, that probably, you know, is a good fit.

But I think that in circumstances where the federal government, you know, comes forward with the yet unknown MCL and it winds up being something that is where the state has a less stringent standard, that’s probably gonna be a conflict and there probably have to be something that’s worked out. But, you know, keep in mind also that where we are right now is a situation where we have a patchwork of regulations across the country really with an absence of federal standards. So, we’re moving from kind of one dynamic of confusion to the next, I guess.

Dane: All right. Well, thank you very much, Ned. That is going to be the end of our chat questions. If we did not get to your question, someone will make an effort to follow up with you. If you would like more information about law services from Godfrey & Kahn, please visit gklaw.com. Also, if you’re interested in some additional resources about PFAS regulatory developments and treatment technologies, you can scan the two codes on the left of the screen with your phone. The code on the left will take you to our PFAS Training Portal, which has webinar presentations from industry-leading and expert speakers like Ned Witte and other leading environmental engineers, regulators, and attorneys. And the other code right next to that will take you to our PFAS Resource Center which includes treatment technology, case studies, third-party research articles, and PFAS news. You can scan these now on your phone and they’ll also be included in the recording of this webinar, which we will be sending out shortly. So thanks again very much to Ned Witte and thanks to everyone who could join us. Have a great day.