Last week’s iteration of the Environmental Law Institute’s (ELI) monthly PFAS webinar focused on state PFAS regulations for consumer products. Echoing the message from prior meetings, the speakers implored manufacturers in this realm to conduct due diligence investigations in preparation for forthcoming enforcement. However, they noted that significant challenges exist for even the most well-intentioned producers. Namely, state regulations are often vague and broad, and PFAS release and exposure during the manufacturing process can be unforeseen and quite surprising. This creates an environment that can lead to hesitation and inaction, decisions that can ultimately be detrimental and costly.
With an ever-growing variety of common household objects linked to PFAS exposure, manufacturers can benefit from due diligence investigations. Photo by Mk2010, CC BY-SA 3, via Wikimedia Commons.
We learned that while federal PFAS regulatory action has been thorough and technical, state directives are, at times, ambiguous and not as scientifically grounded. This is not surprising considering state legislative sessions are brief relative to their federal counterparts, which, in turn, means these decisions can be hastily written and implemented. As a result, manufacturers face state regulations that can vary widely, even in their very definition of “PFAS.” Such disparities can tempt manufacturers to wait for seemingly inevitable change and more concrete decisions. However, regulatory enforcement may emerge well before any modifications. Rather than wait, the speakers advised that companies proactively implement their own policies to comply, conduct document audits, and maintain comprehensive records of PFAS usage and disposal. Regardless of regulatory changes, in the future, these actions may serve as evidence of good faith.
That may be especially important given the rate at which new PFAS contamination sources are being discovered. For instance, while it is well known that PFAS has been used in consumer goods for a variety of waterproofing, nonstick surfacing, and other uses, some manufacturers have learned that their industrial machinery itself, treated with PFAS-containing agents to allow components to move more efficiently, has led to the inadvertent contamination of their otherwise PFAS-free products. These types of revelations should serve as a warning to all unassuming manufacturers that an investigation of potential past or current usage of PFAS is in their best interest.
Companies must make swift decisions because plaintiffs are not waiting for state regulatory changes. Where should due diligence investigations start? For one, historical research can be invaluable in determining the source and nature of any past PFAS presence. At TRG, we are often asked to investigate historic operations at industrial sites, including researching specific manufacturing inputs, plant equipment, and processes—experience that makes us well equipped to assist in corporate due diligence efforts. Moreover, we are immensely proud of our pioneering work in researching the historical usage and disposal of PFAS end-products such as AFFF. If you are concerned about your potential liability regarding PFAS, we are ready and willing to assist.