Environmental Regulators Examining New Threats

Charlie Williams joined Gentry Locke in 1970 and heads the firm’s Environmental Law practice. His work includes advising corporate and municipal clients in the areas of environmental compliance, including enforcement and environmental tort litigation. He has extensive experience in contaminated land renewal and the management of environmental aspects of mergers and acquisitions.

Everyone in the country that operates a business or owns property should be mindful of impending regulatory action regarding newly identified contaminants. These “emerging contaminants” are generally described as per- and polyfluoroalkyl substances (“PFASs”) which are perfluoroalkyl acids that have been commonly and widely used in the United States for approximately 50 years.

These compounds are associated with birth defects, cancer, liver impacts, damage to the thyroid, damage to the immune system, and injury to blood chemistry. The concern over these compounds is exacerbated by their ubiquitous use in our society. They are used in fire retardants and firefighting foams, wire insulation, carpeting, clothing and other textiles, cleaning materials, coatings, and paper products. It is certain that everyone in the United States is exposed to these materials on a daily basis.

As of this writing, the United States Environmental Protection Agency has not promulgated regulations controlling PFASs while several states, including California, Connecticut, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New York, Vermont, and Washington are active regulating these substances at some level.

The grave difficulty is that based on current science, no one knows what the remedial strategies are if these materials are discovered to exist on the property or in the product in question. They are known to be more persistent and more rapidly transmitted than many of the common industrial toxic chemicals which have been regulated for the last several decades and are commonly the subject of federal and state remedial actions.

From a practical perspective, it is difficult to determine how individuals may effectively avoid exposure to these materials. For business owners or those who are active in mergers and acquisitions or land transactions, we know regulatory action is certain, but yet there is no clear guidance for the management of these materials. How much an owner or seller of a business or real estate should be concerned and, conversely, how much a buyer or investor should be concerned is difficult to determine.

There are, however, some helpful legal strategies to aid with the management of PFASs but these depend on the circumstances.

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