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’ll 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.

Today’s presentation will focus on PFAS in Class B firefighting systems and how to prepare for looming PFAS roadmap challenges. With that, I’d like to introduce our presenter for today. We’re pleased to have with us today Ned Witte, attorney and shareholder with the Godfrey and Kahn Environmental Strategies Practice Group. Ned has broad, nationally recognized experience in counseling clients concerning the emerging contaminants per and polyfluoroalkyl substances, or PFAS, including PFOA and PFOS. He represents clients with interest 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, so that concludes our introduction, and now I will hand things over to Ned Witte to get us started.

Thank you, Dane, and thank you, everyone, for joining us today for this important discussion. I really appreciate your presence here, and I want to also thank Regenesis, which is a tremendous partner in promoting these informative webinars, and I feel privileged to be able to participate in them. We’re talking about a subject PFAS, and in particular, Class B firefighting systems, in a landscape that is rapidly changing so you know some of these things that we’ll be talking about will be affected by upcoming regulatory changes, litigation, policy, and just stay tuned and fasten your seatbelts because it is moving very quickly. On the last page of my materials, which you will all receive a copy of, I just want you to note that there are some links there to the Godfrey & Kahn PFAS resources page, so you can click on that and find more information. You’ll also be able to use a link to get directly to an article that is on the same topic as today’s presentation.

That’s an article that I prepared with Ryan Moore of Regenesis and with Jennifer Baker of Barnes & Thornburg law firm, and I think you’ll find that interesting. There are also some links inside of that to some of these topics that we’re talking about today and some of the materials that are the background for this presentation. So what I have here is an agenda that identifies what I will be discussing today. I’ve introduced the topic, which is PFAS and Class B firefighting systems and the clash, as I described it, between the benefits of operating and utilizing and testing a Class B firefighting system with present and upcoming regulatory standards that are going to be affecting those practices. So I’m assuming that everybody today has a fundamental, if not a developed understanding of PFAS, but I will take a quick, as I call it, a lightning round just to update everyone and make sure that we’re all using the same terms.

Then I want to talk about PFAS risk and how PFAS risk is present. As most of you know, risk is really present where we deal with a hazard and exposure, but I think that there’s also another element of PFAS risk, which is risk of liability or risk of financial exposure. And so we want to talk about that a little bit and how that fits into and is influenced by regulatory standards. Then we’ll take some time to talk about what a Class B firefighting system is, because I think that that is something that we all know of, but I think that when you drill into some of the National Fire Protection Association standards, you’ll get a periodic testing is really about. There is a set of regulations that exist right now, primarily at the state level, but I think that we’ll be seeing that there’s greater attention being paid to Class B firefighting systems at the federal level as part of the PFAS roadmap.

Maybe not specifically, but through some of the initiatives, including the proposed and we believe now imminent identification of two PFAS substances as circle hazardous substances and how that’s going to impact facilities that have and have utilized Class B firefighting systems in the past. And I’ll leave you with some best practices. I think there are some really specific targets and issues that parties and owners and operators of Class B systems can now put into place and that you as either representatives of those businesses or working on behalf of as a service provider to those businesses should in mind and how we can help out our clients who are in these situations. PFAS lightning round. As we all know and as Dane introduced, the PFAS is the acronym for per- and polyfluoroalkyl substances. I have here just an image of that, you know, that is a set of a family of chemicals that are man-made that were produced beginning in the middle of the 20th century and are marked by a set of carbon atoms with fluorine attached to them. And it was, Legend has it accidentally introduced and discovered by a 3M chemist, but obviously took off and has been widely applied.

Great benefits from this product in many different applications based upon its properties of repelling water, oil, and fats, also being heat and fire resistant, friction resistant. So, there really are a number of different applications which we’ll talk about in a minute that have made it tremendously valuable as a chemical applied in commercial and industrial products as well as in firefighting functions. It’s taken on this acronym FOREVER CHEMICAL because of its durable characteristics. And as you’ll hear many professionals tell you, that is what makes it so challenging is that its durability and persistence is what makes it so valuable in these applications, but it’s also what makes it so hard to address in an environmental context. As far as those applications, these are things that are now familiar to most of us, but it is all around us and all inside of us as well. It is present in Scotchgard and Stainmaster products and Gore-Tex products, Teflon. But through those applications, it’s also found its way into wastewater streams and therefore it’s now an issue of significant concern for publicly owned treatment works, wastewater treatment plants being present in these household applications.

And the topic that we’re really talking about today is how PFAS in its functionality within aqueous film forming foam at airports, but class B firefighting systems in particular is such a significant concern because of the way that it has been used. So talk a little bit about risk and as environmental professionals, you’re all familiar with this and how to sort of define risk. But as I was thinking about this and thinking about this presentation, I was thinking about some of these descriptors that have come to PFAS of either being a forever chemical and you’ll also hear and read so frequently that PFAS is ubiquitous in the environment. I think that some of those are a little bit reactionary. I think that we’re still on a path and a flow here of understanding more, but I think right now we’re all still at a relatively early stage of understanding the extent of PFAS, how to address these chemicals.

There are others who are deeply studying how to attack and break apart that carbon fluorine connection and remediate and address PFAS in the environment. So I think that one thing that I would say is that it’s less than fully understood and anxiety flows from uncertainty, particularly for me as a lawyer working with people when they don’t understand the full extent of a problem and they’re potentially at financial and legal risk for that. That’s something that’s going to make them very concerned and anxious, and so therefore that uncertainty is something that we’re trying to deal with better. And I think that the term ubiquitous would suggest that it is everywhere we look. And I think that it’s probably pretty close to that, but I would guess that maybe a more appropriate descriptor might be that PFAS is pervasive.

But those things influence how we recognize it as a risk, because the PFAS hazard, that is the existence of PFAS and how it’s released plus the PFAS exposure either to human health or to the environment is really what drives and identifies what that risk is. So that PFAS risk would be omnipresent, it would be everywhere if PFAS were in fact ubiquitous and if we’re present at levels also creating harmful exposure. But I think that that’s not always the case. So we’re working on understanding better Where is it coming from and what are in fact harmful or on the other hand acceptable levels of exposure? And that’s something that’s a hot topic right now before the U.S. Environmental Protection Agency and the Scientific Advisory Board as they’re trying to determine maximum contaminant level goals for PFAS and how to move forward in developing drinking water standards for PFAS as part of the PFAS roadmap.

But I would submit to you that PFAS risk does arise in circumstances where PFAS is released, for example, at airports or at Department of Defense facilities or at landfills or at Class B firefighting foam system locations, and where humans are exposed, for example, where that PFAS gets into the groundwater. So an image like this is helpful and instructive in understanding that a little bit better as far as sort of that cycle of movement of PFAS in the environment. And so to the left, you’ve got an industrial facility which has a class B firefighting system in place, either through a fire event or through periodic testing, ideas that we’ll talk about today, that PFAS can be released into the environment. And so once it finds its way into the environment, either into the soil and groundwater, and therefore getting to the bottom of our page and moving toward the right, it’s going to potentially be taken up into a drinking water source, either for livestock, humans, whatever else it might be. Could also find its way into surface waters and also be exposed to fish or other drinking water sources.

And then also, if you think going back to the facility, it’s also possible of having that emitted into the air, coming back to us and back to the earth through precipitation, but it’s that real cycle that’s out there, and that’s where this risk and exposure really manifests itself. Okay, let’s talk about what a Class B firefighting system is, and for this, I’m really going back to the standards and identifiers that are in the National Fire Protection Association standards. What is the National Fire Protection Association first, kind of backing up for a minute? The NFPA is a national nonprofit with approximately 50 ,000 members that publishes codes and standards that are really aimed at minimizing the possibility and the effect of fire and other risk. So they’re the ones who really are sort of the keepers of the standards of how to implement and address risk of fire and take actions to prevent them. In particular, the NFPA Association Foam Standards are set forth in this document that’s known as NFPA 11, and that has some helpful definitions, including what a Class B fire is. Class B fire is a fire that’s in flammable liquids, combustible liquids, petroleum greases, tars, oils, oil-based paints, solvents, lacquers, alcohols, and flammable gases.

So you can all think of many facilities that would be storing, utilizing those materials in their production activities. In that circumstance, they do have a potential for a risk of a Class B fire, and therefore may have the need for a Class B system, Class B firefighting system. And then you see there are definitions also for different types of systems, which can be mobile, like on a truck, which can be used at an airport, for example, to respond to a fire or fixed. So, a fixed system is one which is a complete installation in which foam is piped from a central foam station discharging through fixed delivery outlets to the hazard to be protected. And this is really what we want to focus on today. Here are some pictures just as examples of what a Class B system might look like in an industrial application. And those are the conveyance infrastructure implements which would carry the foam or the other material to a centralized location where it would be deployed.

What are the purposes really of a Class B firefighting system? Really, I think it boils down to two. It’s obviously to control the Class B fire, to address the circumstance in which a Class B fire arises and needs to be put out. But it also is something that is implemented by facilities who have to have fire insurance, and it’s effectively a preventative tool that will assist to that facility in obtaining terms of insurance, cost of insurance on favorable terms, because they’ve taken that step to have preventative measures put in place. So very much as you see from this image here, you know, it’s very much like a sprinkler system, but it’s instead of deploying water, it’s actually mixing with the PFAS-containing foam condensate, if you will, the concentrate, which is then drawn into and deployed through the nozzles and other diffusers, which cause it to be turned into a foam product.

So what gets interesting as you drill in further into some of these NFPA standards, and I should mention that these are standards, the standards that I’m referring to today are from 2016. They have been updated in 2020 and 21, but I think what’s relevant here is that we all know that the persistence of PFAS is such that these standards that existed even just seven years ago are relevant because of the practices that would have been implemented related to PFAS containing AFFF as of that time based upon NFPA 11. So, NFPA 11 and Chapter 12 states that a performance evaluation of the foam, including a flow test of the proportioner, needs to be conducted annually as part of inspection and testing of those systems. And it goes on to indicate that the system should be operated for at least 30 seconds and periodically for up to several minutes to allow for an observation of the proper operation and deployment of that foam to make sure that it’s working the way that it should be.

But what’s interesting to note is that a flow test of even 30 seconds, depending upon the nature of the system, could result in the production of significant volume of foam. 1 ,500 to 3 ,000 gallons of foam could be deployed just in that short amount of time. And what’s further interesting, if you go into some of the annexes, some of the appendices of NFPA 11, including one that is known as NXE, which is called Foam Environmental Issues. And I note also that at the heading of these NXs, they include, I wouldn’t call them disclaimers, but sort of cautionary terms of use. So NFPA 11 NXE says that it’s for informational purposes only. But I think some of this is really interesting and it kind of helps us understand where we are these days with regard to Class B firefighting systems. So, some of these are direct quotes coming out of Annex E. Uncontrolled release of foam solutions to the environment should be avoided.

The foam committee believes that the fire safety advantages of using foam are greater than the risks of potential environmental problems and goes on to say what the problems are that the primary concerns are toxicity, biodegradability, persistence, treatability and wastewater treatment plants, but some of these are really unnerving where you go further in it says alternative disposal options and alternatives to scooping it up for example and disposing of it for foam deployed at a testing event should be considered such as discharge to a wastewater treatment plant with or without pretreatment or maybe more unsettling also is this suggestion that given the absence of past requirements to provide containment many existing facilities simply allow the foam water solution to flow out the building and evaporate into the atmosphere, which I think we know really doesn’t happen, or percolate into the ground. And that is the bold font there is my emphasis.

But that is where risk arises is because we find ourselves in a situation in which facilities are encouraged and in fact sometimes required by meeting certain NFPA standards to use and test and periodically and annually operate their systems to deploy the foam and before we knew as much as we know now, the standard practices might have included simply going onto the outside of the facility and opening up the hose to basically deploy the material onto the ground surface or, as this picture might indicate here, deploying it inside of a facility and then what is done with that, it’s basically sort of pushed out the door pushed into floor drains, pushed into the storm sewer, but not necessarily handled in a constructive and a protective way. This brings us back to legal risk, and what I want to just do quickly is give you a sort of an overview of where we stand right now with regard to the federal initiative to address PFAS regulation on a very holistic basis.

So, in October of 2021, the U.S. EPA introduced what it calls its PFAS Strategic Roadmap, and it really is a three-year program to address PFAS on every level pretty much that the federal government might look at. So, these are just kind of overriding guidances or sort of policies of what is in the roadmap. These are identified in the document itself, but it’s really looking at the full life cycle PFAS and looking at the generation of PFAS, how it is used in facilities, how it is used in commercial products, how it is disposed of, how it finds its way into the environment and where that risk of exposure exists. Looking at also, we have to keep in mind what can be done to prevent that risk in the first place. That might go back to product substitution, product replacement, use of other products that can achieve the same objectives and goals of a Class B firefighting system with AFFF, which may or may not be feasible, but trying to look at that full life cycle to understand what can be done.

And that also relates to getting upstream as trying to go back to sources and identify prevention activities that can be implemented. Holding polluters accountable is a critical and sort of fundamental element of the roadmap, and I think this is what has a lot of potentially responsible parties concerned at this stage of the game. You know, there are some who are owners of facilities where PFAS may have been deployed, may be present, and that’s something that’s a concern because of the standards of liability under the federal CERCLA law. But it also has a lot of other entities very anxious, airports, the military, municipalities who are operating wastewater treatment plants, landfill operators. These are all situations in which they may not have been generators necessarily. They might not have been the parties that initially produced and caused the release of the hazardous substance as it might be regulated soon. But nevertheless, they fit into the category of potentially responsible parties.

So therefore, there’s a lot of discussion going on right now about exemptions from liability as well. Other elements of the roadmap are to really work hard on science and to make sure that this is science-based decision-making. I mentioned the SAB, the Scientific Advisory Board, they’re looking very closely at issues of exposure scenarios and trying to understand the science related to PFAS. And then, as with many different components of federal regulatory standards these days, there’s also an environmental justice provision of trying to make sure that disadvantaged communities are protected. Where do we stand with the ability of the federal government to regulate and address PFAS? One of the critical ingredients of the strategic roadmap was identifying two PFAS compounds, PFOA and PFOS as hazardous substances under CERCLA. On January 10th, US EPA submitted to the OMB that plan to designate those substances as CERCLA hazardous substances.

There’s a 90-day window after which that was supposed to have been responded to. That would have been April 11th. I’m keeping a close eye on this. Nothing has happened yet, and this shoe hasn’t dropped as far as the process beginning on identification of PFAS as a circle hazard of substance. But once it occurs, then we’re off on a 12-month time frame where the preliminary proposed rule will be considered, received public comments, but ultimately, 12 months after that initial publication, it will become final, and these two PFAS compounds will be regulated and identified as circle hazardous substances. And there are consequences. I’ve did a previous presentation with Regenesis on PFAS as a circle hazardous substance, and which is still available if you’d like to go back and listen to that in detail, but this is one slide from that presentation. There are some significant issues that will come about as a result of PFAS. And let me just walk through these quickly.

First, the release notification responsibilities under CERCLA will apply to PFAS. And usually what happens with regard to release notification is that it’s in response to an emergency type release where something is spilled into the environment or into a surface water. And if it’s of a significant quantity, otherwise known as a reportable quantity, it triggers an obligation to notify the National Response Center and to take action after that. With PFAS being a substance that is regulated at such a low, low level, you know, the health advisory level, which is really the only thing that we’ve gotten out of the US EPA of 70 parts per trillion, it’s hard to imagine just how low that RQ for PFOA and PFOS might be, but I think it’s going to cause, you Some have suggested that any level is going to be regulated and is going to be unacceptable, but I think that’s going to trigger some interesting notification responsibilities as well.

I mentioned the MCL or maximum contaminant level, which US EPA is beginning to study right now and looking at proposing a preliminary number by the end of this year with a final number to take effect by the end of 2023. That also is going to be very important because that’s really going to become kind of our right-line cleanup standard of what is an acceptable level of PFAS. This is already having an effect on existing sites. The sites I’m working on now are seeing PFAS come up as a substance, a topic for a five-year review investigation, but I think it’s going to be something that hasn’t been looked at in the past, and therefore it’s going to be an influence on those sites. It’s also going to influence existing PFAS cleanups. Some parties have been working on cleaning up PFAS contamination. And when this number of the circular listing happens, it’s going to be an interesting condition to observe and understand how that influences existing PFAS sites.

There’s also going to be an interplay between the federal and the state governments as far as those states that have already developed numbers. Some states have very protective standards, very protective numbers that have already been identified and developed. How that relates to the federal number is going to be very important, and also for those states that haven’t taken action, will the federal number become an ARR under CERCLA that is therefore applicable to a remediation activity in that state? There probably will be an outcropping of new sites as well where PFAS is identified, and they have the potential to therefore become identified as a CERCLA site, and that triggers some interesting opportunities and liabilities for the use of other CERCLA tools, including cost recovery, contribution actions, federal involvement, federal funding, potentially for sites where PFAS is present.

There’s also, obviously we all know there’s a wealth of litigation that’s out there right now, including nearly 1 ,800 cases in the South Carolina multi-district litigation proceeding. Those right now are relying upon common law theories and other state law theories to basically hold the responsible parties accountable. But it’s going to be interesting to see how a CERCLA designation impacts that as well. It’s also going to have a tremendous impact on transactions because it already is. I think people are very anxious about this. But once it becomes a little bit more specific, I think that it will also have an impact on transactions. I mentioned municipalities before, they’re very concerned about this because of the concern related to exposure for landfills that they may have operated, exposure for municipal wastewater treatment plants that are part of their overall operation, also concerned about brownfield development and how an identification of PFAS as a circle hazardous substance is going to cause anxiety and basically slow down brownfield redevelopment.

This is driving a lot of interest in exemptions I mentioned before, but that’s a very tricky process to work on exemptions and how that fits into the overall regulatory program. In the absence of federal action, states have been stepping up to basically address PFAS through state laws. And what this figure represents is a depiction of states that have taken the steps to address practices related to Class B firefighting system, AFFF, testing. And what you see on this figure is that those states that are identified in that reddish color are states that have enacted regulations to prohibit testing with AFFF, so only to Colorado, California. And then those states that are identified in yellow have taken steps to allow PFAS testing but only with appropriate containment, treatment, and disposal of the PFAS that is released as a result of that testing. And those states that are in gray have not taken actions as of yet. This is a figure that was developed with Regenesis Assistance in mid-2021, so there may be some updates to this as well.

What I want to do is focus on the state where I practice, Wisconsin, because I think it’s an interesting model for how PFAS in AFFF class B firefighting systems has been regulated and addressed. So in Wisconsin, the state of Wisconsin Department of Natural Resources views PFAS as a hazardous substance under the Wisconsin Spills Law. Quick footnote and detour, within the last week or so, a court in Wisconsin issued an oral ruling that the state of Wisconsin Department of Natural Resources has not gone through proper rulemaking in order to regulate PFAS as a hazardous substance. And so it’s causing a bit of a shockwave in the state right now. I think one of the greatest concerns about it is that it potentially extends beyond PFAS to other hazardous substances because we operate in our state with a narrative determination of what constitutes a hazardous substance. We don’t have a cross-reference, for example, just to the federal list of circle hazardous substances, but instead any substance that’s in the wrong place and the wrong concentration that could be harmful to human health or the environment represents a hazardous substance.

And using that basis, the state of Wisconsin has considered PFAS to be a hazardous substance, but that is what certain bodies are challenging, that there weren’t proper steps taken to identify it as a hazardous substance. However, for the time being, we’re still in a status quo where PFAS is a hazardous substance in Wisconsin. So the DNR, moving from that, the DNR interprets, and we in the regulated community and in the environmental legal practice have accepted over these 40 years of application of the spills law that this spills law liability applies not only to releases of material to a sudden or accidental release, such as if PFAS firefighting foam was spilled and allowed to get into the environment, but it also applies to circumstances where contamination is identified discovered as a result of a historical release. So, for example, in this picture here, Phase 2 is being conducted, and if a Phase 2 identifies the presence of a hazardous substance in the environment, in the soil or the groundwater, that, under our Wisconsin Spills Law, constitutes a discharge of a hazardous substance that is subject to reporting and immediate response activities.

Pertaining specifically to Class B firefighting systems, Wisconsin has also developed a law that prohibits the use of Class B firefighting foam containing intentionally added PFAS except in two circumstances. So, there are these two exemptions to that general prohibition. PFAS in an AFFF application can be used in response to a fire emergency or a real fire, but it also can be used for testing purposes such as the NFPA standards we were talking about before when that testing facility implements appropriate containment, treatment, and disposal or storage measures to prevent the discharges of the foam to the environment. So that might be dams and diking and other discharges to impervious surfaces where that material is completely collected and managed in appropriate protocols. But read on, any person who tests subject to the exemptions must immediately notify DNR of the use or the discharge of such PFAS containing foam and any discharge of the foam to the environment.

So if that effort to try to contain the PFAS that is discharged results in a release to the nearby soil and therefore groundwater or stormwater system, that under again under the state of Wisconsin Spills law constitutes a release of a hazardous substance and therefore triggers an immediate notification obligation and also self-implementing immediate response activities to investigate the nature and extent and to take actions to restore the environment. This is what I refer to as the Class B clash, and I think this is why this is a significant issue because I think this is something that has been a little bit under the radar to date, but I think it’s going to be something that will continue to be focused on as we move forward. Class B systems are a good idea. Class B systems represent sound practice for risk management, preventing damage to property, to businesses, to human health. I mean, if a Class B system can accomplish that, that’s a real benefit.

They also are important for facilities that need to have protection against a Class B fire, because if they can put such a system in place, they can qualify for favorable fire insurance rates and terms. When you look at how those standards have been around for a while, the NFPA standards and risk management practices require or have required performance testing on an annual basis. And in those standards themselves, there’s an acknowledgement of accepting a practice of letting that discharge foam either percolate into the ground or collect it and discharge into the sanitary sewer to a system that isn’t equipped to actually handle or treat that PFAS. So in essence, that discharge into the ground and into the groundwater is a sort of a tacit acceptance of acknowledging discharge into the environment or sending it into the sewer is basically acknowledging that it’s either going to get into the receiving water from that wastewater treatment plant or into its sludge and therefore into a biosolid farm, you know, agricultural application or into a sludge that winds up going to a landfill, which again kind of starts that cycle all over again.

And the thing that I think is a real concern is that those discharges are what result in potential liability. So having a Class B system, it’s good to hope that you never have a fire and that your testing has been done in a way that wouldn’t release any PFAS to the environment because that is what would potentially result in liability. And thinking about that Wisconsin model also, that if using and testing a system triggers an obligation to notify the state that the testing event has occurred, it essentially is kind of putting that system or that facility on the radar or on the hot seat as far as being a potential site where PFAS has been released. So, what to do? I want to share some best practices with you that I think are appropriate to consider. We are working with some parties who are proactively addressing preventative measures to deal with these concerns. And so, one way to deal with that is to perform an internal audit or investigation.

When doing so, and what I’m talking about there is basically conducting a desktop investigation, a paper review historical records within the facility and within the business to understand where and when and how Class B systems have been utilized. This could result in an obligation to notify government agencies as a result of that investigation, potentially even without conducting an investigation, you know, a phase two or invasive investigation. So that’s something to be aware of. I think that it’s important to think about privilege opportunities, potentially using outside council to either conduct the investigation or to retain parties who are performing it. Other steps that can be taken in transactions, thorough due diligence needs to be performed. We now know that PFAS is part of the ASTM standards, and so therefore that’s a benefit. It’s going to be included in that. You may be able to utilize environmental insurance in those transactions also.

Different insurance providers are in different states right now with regard to the availability of such insurance. You also should think about looking back or looking at current insurance availability. It’s possible that an older CGL policy that existed prior to the sudden and accidental exclusion to insurance coverage may be available to cover a release of PFAS that occurred during the term of that policy under an occurrence-based policy, or if you have an environmental impairment liability policy, which is a claims-made basis for insurance, it may be possible to get coverage there as well. You should also evaluate supply chain and sources of contamination in the area of the facility. Also, review indemnities with suppliers and with customers or with parties from whom the property was acquired. It’s very important to have an informed and experienced technical and legal team to assist you as you go forward into this process as well.

Other best practices would be to evaluate a possible upgrade of the Class B firefighting system. In the case of the parties that I’m working with, that’s one of the things that they are ultimately looking at is how do we eliminate this risk and this problem at our facilities And could we ultimately retire these systems and move to something that is a non-AFFF or PFAS-containing product? One way to think about that also, though, is it’s time to kind of review what was the system originally designed for, and is it still necessary? So I think that’s one thing that is kind of an initial step, is to determine where is the system? Is it for a flammable storage room? Is there some other alternative to storing those materials that wouldn’t necessitate the Class B system containing AFFF so that you could basically move away from that entirely. There are other systems now, fluorine-free foams, that would be available, but it’s likely that you can’t just change out the foam and start using a fluorine-free foam within the existing Class B system infrastructure that exists right now, so it’s possible the whole system may need to be replaced or that that may be a less expensive alternative to trying to retrofit it for a flooring-free foam.

Because the F3 material, as it’s called, flooring-free foam, is limited to a foam blanket mechanism only, it doesn’t have some of the same properties that AFFF is required, it probably will need more material, more time for extinguishment in order to put out a fire. So you clearly should be communicating with a class B system manufacturer, a qualified fire suppression engineer, in order to understand the options in that regard. As far as other ongoing responsibilities and practices, you should manage any AFFF and perhaps even the Class B system itself as a hazardous substance. So that would mean appropriate containment and storage and disposal of any foams that are available. It could be that you’re in a state that has a collection program so that they would be willing to assist with collection of PFAS-containing material. Any material that is present should be stored in a way that is ensuring secondary containment and other meets other facility risk management programs like a SPCC plan or other hazard management appropriate programs. And then to the extent that there is a testing or a fire event, you need to be prepared so that you have an ability to collect that FFF that is discharged.

If AFFF is discharged, you know, is not contained, then it’s time to basically jump into a contingency mode of determining if a release to the environment or some other applicable legal standard based upon state law or soon-to-becoming federal law has occurred, and then understand based upon the existence of such a release to the environment, determine the notification and response legal obligations, identify pathways and receptors, whether that might be groundwater, a stormwater conveyance system, a surface water, the extent of contamination or extent of release that has occurred, and then be sure to engage technical and legal support as you move into that process. It’s the beginning of a long exercise at that stage of the game. And then finally, unfortunately, one has to be prepared for potential litigation as well. Right now we’re in a very litigious environment, I heard someone today call it kind of asbestos 2.0.

We’re sort of in a situation where so many different entities are now being targeted and identified as potential responsible parties. So the plaintiffs in such cases that we’re seeing now, that is kind of represented in that MDL, but I think could be applied to the Class B scenario, would be residents near military bases, airports, manufacturing facilities, people who have been impacted or their wells have been impacted by PFAS, public water suppliers, municipalities or facilities using PFAS or located downgradient. That would also include, again, I would say municipalities where it’s showing up in the wastewater stream, states and state regulators, military and civilian firefighters exposed during work activities and farmers. But I think that the thing that we’re seeing is that there’s more push looking downstream. So the initial sort of raft of potentially responsible parties or defendants and actions were the three M’s and the DuPonts. And then we’ve seen it moving down a chain to the producers of AFFF.

But now we’re seeing it move down another chain to some of those entities that utilize PFAS in carpet or in other material. You probably have all noticed also that within the last couple of weeks, the newest defendants on the list are McDonald’s and Burger King for utilizing PFAS in grease-free paper food packaging. So you’ll have to work very closely to identify legal counsel and to identify technical assistance to help you in these proceedings and local counsel is going to be very important as well. I’m gonna leave you with a couple of parting numbers from very large to very small but I think these have an influence and then there’s something to be aware of. Four billion dollars, that’s the number that was the settlement between DuPont and Chemours related to PFAS exposure. And I hold that number out there often because that’s a number that is known to the plaintiffs’ bar and to the parties that are representing those parties I had on the previous page. That’s a huge trough of money that everybody wants a piece of. 200 million is the number of Americans with PFAS concentrations over one nanogram per liter in their drinking water. So it’s a huge class of parties.

As I mentioned several times, 1 ,800 is the number of cases that are presently in the South Carolina HFFF MDL proceeding. 113 and 107, I mentioned those earlier, those are the two section numbers of CERCLA that authorize contribution and cost recovery for substances. So keep those numbers in mind because those are going to be important as CERCLA becomes a hazardous substance and as government entities and private parties begin to utilize those tools to go after other parties that they believe are responsible for PFAS contamination. And about 12, that’s about how many months we have until that becomes directly relevant because when PFAS becomes a circle hazard of substance, these concerns are gonna become a reality. And then last number I have, last numbers I have here are 0.006 nanograms per liter or 0.03 nanograms per liter. Those are potential federal MCL values that certain environmental interests support as appropriate MCL numbers for PFOA and PFOS respectively. and hold those in contrast to 70 parts per trillion.

Here we’re talking about 0.006 parts per trillion or what otherwise could be known as six parts per quadrillion. Will it go that low? I think most people observing this don’t believe it will happen, but that would obviously mean circumstance in which any detection would be unacceptable. Thank you very much. I really appreciate your time today. Appreciate the opportunity to talk with about this. My contact information is here. I’m happy to talk with you anytime. As I mentioned, there are two links here that you can utilize to drill into and get some of these additional resources. Or if you’d like to see the article that I prepared with Regenesis and with Barnes and Thornburg, this is the link for that article as well.