Perfluoroalkyl and polyfluoroalkyl substances (PFAS) are dominating the environmental health news cycles based on numerous studies which demonstrate their potential risks. The U.S. Environmental Protection Agency (EPA) is taking a very close look at manufacturers’ use of these chemicals in the air, land, and sea. In recent months, the EPA has signaled its intent to “take significant action” through its “enforcement discretion and other approaches” to “protect people and communities” with a particular focus on the manufacturing industry.

Perfluoroalkyl and polyfluoroalkyl substances (PFAS) are dominating the environmental health news cycles based on numerous studies which demonstrate their potential risks. The U.S. Environmental Protection Agency (EPA) is taking a very close look at manufacturers’ use of these chemicals in the air, land, and sea. In recent months, the EPA has signaled its intent to “take significant action” through its “enforcement discretion and other approaches” to “protect people and communities” with a particular focus on the manufacturing industry.

PFAS are used in various industrial applications such as firefighting foams, non-stick cookware, and stain-resistant textiles. With increasing regulatory action surrounding PFAS and recent industry settlements, manufacturers should consider the potential for increased litigation alleging PFAS contamination in their products or operations.

Here are the steps manufacturers can take now in assessing potential impact from PFAS and developing a defense strategy ahead of EPA’s heightened enforcement:

Understand the Risks

Manufacturers should understand the potential risks posed by PFAS exposure and contamination. It is critical to identify and evaluate potential sources of contamination in operations, products, and supply chains. Manufacturers should also monitor legislation and regulations regarding these substances to ensure compliance with all relevant requirements. Manufacturers need to evaluate current and historical waste streams, manifests, product storage data, processing and manufacturing data, and Toxic Substances Control Act (TSCA) and Toxics Release Inventory (TRI) documents.

Conduct a PFAS Audit

Manufacturers may want to conduct a comprehensive audit to identify PFAS-containing products, raw materials, and processing equipment. The audit should also identify sources of potential PFAS contamination in the manufacturing process, including wastewater, air emissions, and waste disposal. Audits should be conducted under state and federal voluntary action programs and audit programs.

Develop a Sampling Analysis Plan for Potential Areas of PFAS Contamination

Manufacturers may want to develop a Sampling Analysis Plan for areas that may have had a PFAS release. Sampling Analysis Plans can be conducted under state and federal voluntary action and audit programs. Doing sampling now expands a manufacturer’s options rather than waiting until potential contamination is found by the government or a third-party.

Develop PFAS Management Plans

Based on the PFAS audit, manufacturers may develop management plans to address the prevention, reduction, and remediation of potential PFAS contamination. Prevention measures include phasing out the use of PFAS-containing products and raw materials, implementing best practices for handling and disposing of PFAS materials, and designing processes that avoid PFAS contamination. Reduction measures include capturing and treating PFAS-containing wastewater and air emissions and using filtration systems to prevent PFAS release to the environment. Remediation measures include identifying and managing contaminated sites, developing remediation plans, and working with regulatory agencies to ensure appropriate cleanup.

Establish PFAS Communication and Disclosures

Manufacturers should consider establishing a communication plan for stakeholders, including consumers, suppliers, and regulators, regarding their actions to manage potential PFAS liability. Such communication may include transparency regarding PFAS content in their products, disclosure of PFAS management plans, and regular updates to stakeholders regarding their progress in reducing or eliminating PFAS use and possible contamination.

Legal Preparation

To prepare for potential legal action resulting from possible PFAS contamination, manufacturers might consider identifying potential legal liabilities, developing legal defense strategies, and working with counsel to maintain compliance with all relevant regulations and standards.

Insurance Policies

Finally, manufacturers may want to evaluate historical insurance policies. PFAS have been around since the 1940s, meaning that many old insurance policies may provide coverage, as they were enacted prior to pollution exclusion clauses. Manufacturers may want to consider utilizing the services of an insurance archivist to reconstruct decades-old insurance policies on the property.

In conclusion, managing potential PFAS risk is a critical issue for manufacturers and property owners. Taking proactive measures to understand and address potential risks may help avoid negative impacts on a business. By conducting comprehensive audits, developing management plans, establishing communication plans and disclosures, preparing for potential legal action, and reviewing historical insurance policies, manufacturers can navigate the PFAS landscape, defend potential claims, and maintain compliance with all relevant regulations and standards.