What Does the Presence of Perfluorinated Compounds in the Environment Mean for Michigan's Regulated Community?
There is increased regulatory scrutiny regarding the use of and potential public health impacts from per- and polyfluoroalkyl substances. Find out what this means for Michigan manufacturers.
Published in the MiMfg Magazine (Vol. XXX, Online Issue No. 6, December 2017), produced by the Michigan Manufacturers Association Service Corporation (MMASC). It is reprinted here with permission.
Per- and polyfluoroalkyl substances (PFAS) are a group of compounds that were formulated to improve resistance to stains, grease and water in a wide variety of commercial and industrial products. Common uses for PFAS include firefighting aqueous film-forming foam at oil and gas, chemical, Department of Defense and municipal firefighting facilities; plating operations as mist suppressants; and uses in nonstick cookware, food packaging, waterproof clothing, fabric stain protectors, lubricants, insecticides, cleaners, wire insulation, paper and paints.
The widespread use of PFAS created the public perception that they were safe. However, with more information on PFAS emerging, regulators, consumers and the regulated community are now understanding that these contaminants are very persistent in the environment, do not readily degrade and have been found to be bioaccumulative. With this, there is increased regulatory scrutiny regarding the use of and potential public health impacts from PFAS.
In fact, to address this emerging issue, Governor Rick Snyder signed Executive Directive 2017-4 on 11/13/17 to establish the Michigan PFAS Action Response Team (MPART). The MPART will be led by retired Michigan Chief Deputy Attorney General Carol Isaacs and will include representatives from the Michigan Departments of Environmental Quality (DEQ), Health and Human Services, Military and Veterans Affairs, and Agriculture and Rural Development. The MPART also will utilize David Savitz of Brown University as its academic consultant. The MPART will lead the state’s efforts in developing protocols and best practices to ensure PFAS sites across Michigan are responded to in a comprehensive, cohesive and timely manner.
Impact
So what does the emergence of PFAS as pollutants of concern mean for Michigan’s regulated community?
- PFAS will likely be added as contaminants of concern at more sites. Since they were widely used, it is likely that the DEQ and the U.S. Environmental Protection Agency (EPA) will require potentially responsible parties to begin to sample for the presence of PFAS. Increased sampling likely means an increase in PFAS sites. This may include sites that previously received regulatory closure or are the subject of an administrative or judicial order that typically includes a re-opener for discovery of new conditions.
- Most of the PFAS focus has been on two compounds, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). However, there are approximately 30 PFAS substances that qualified laboratories can evaluate. Even if you have been investigating PFOS or PFOA, regulators may soon require additional sampling for the broader range of PFAS.
- Since many publicly owned treatment works do not have PFAS removal technology, those whose operations discharged wastewater containing PFCs may receive requests to investigate potential impacts from PFAS that may have reached receiving waters.
- As the EPA has only established health advisory limits, it is likely that states like Michigan will develop their own criteria, which will likely be lower than the health advisory limits. Given events such as Flint and a growing public perception that “no risk” is acceptable from chemicals, there may even be public pressure to address conditions even when concentrations are below regulatory limits (e.g., public water supplies).
- Since there are only a few technologies that appear effective in treating PFAS, finding a cost-effective method to treat and clean up these contaminants will be challenging.
What Can Industry Do?
- In the absence of institutional knowledge, consider conducting a preliminary assessment (PA) of your current and former operations to evaluate whether you may have used PFAS. Make sure you keep good records.
- Review the historic material safety data sheet or current safety data sheet of materials used in your operations. If you are using PFAS, consider whether an alternative non-PFAS containing material can be used instead.
- Understand the specific fate and transport mechanisms for each location possibly impacted.
- Monitor the activities of MPART, develop standards and consider commenting on rules and regulations, either on your own or through organizations such as the MMA. The state has created a website, michigan.gov/pfasresponse, where developments can be monitored.
- In some instances, it may be advisable to investigate in order to evaluate whether potential environmental liability issues require additional attention or document that no liability exposure exists based on the PA.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.