Posted in Environmental / Construction Professional and Pollution Insurance, Risk Insight

Emerging Contaminants: Understanding Per- and Polyfluoroalkyl Substances And Their Growing Impact

March 13, 2024 / Samantha Linton

Emerging contaminants are chemicals in the environment that have been recently identified as posing a potential risk to the environment and public health. These contaminants may arise from everyday products or their use in various industries. As these contaminants are detected in the environment with increased frequency and concentration, they become subject to greater scrutiny as they are typically not adequately regulated under current environmental laws and regulations. The EPA has an ever-rotating list of emerging contaminants that they are tracking, including carbon tetrachloride.

What are Per- and polyfluoroalkyl substances (PFAS)?

Per- and polyfluoroalkyl substances (PFAS) are a group of synthetic organofluorine chemical compounds that have multiple fluorine atoms attached to an alkyl chain and resist grease, oil, water, and heat. The carbon-fluorine bond is extremely strong and therefore, PFAS do not degrade easily and have been commonly described as “forever chemicals.” There are thousands of PFAS chemicals, and they have been found in many different consumer, commercial, and industrial products since the 1940s. Common products that contain PFAS include clothing that is waterproof, furniture that includes stain-resistant guards, adhesives, food packaging, heat-resistant non-stick cooking surfaces, insulation of electrical wire, some cosmetics, and synthetic foam typically used for firefighting, including aqueous film forming foams. PFAS contamination is frequently associated with the aerospace, automotive, construction, and electronics industries as well as landfills and wastewater treatment plants.

What are the Concerns?

Research to determine the impact of PFAS on human health and the environment began in the 1950s when it was discovered that PFAS bind to proteins in human blood. Additional research has indicated that PFAS impact growth and development, increase the risk of cancer, and damage organs. PFAS have also been detected at various levels in air, water, soil, fish, and wildlife, and since PFAS take a long time to break down, researchers have found bioaccumulation in fish and wildlife.

There are an estimated 26,000 US sites that are impacted with PFAS and at least six (6) million Americans are estimated to have drinking water containing PFAS above the safe limit published prior to 2022 by the EPA.

What’s Next?

In October 2023, the EPA published a final rule in the Federal Register that will provide the EPA, its partners, and the public with the largest ever dataset of PFAS manufactured and used in the US. This final rule falls under the Toxic Substance Control Act and will require all manufacturers, including importers, of PFAS and PFAS-containing articles in any year since 2011 to report information to the EPA on PFAS uses, production volumes, disposal, exposures, and hazards. In January 2024, the EPA released three (3) methods to better measure PFAS in the environment and there was the automatic addition of seven (7) PFAS to the list of chemicals covered by the Toxics Release Inventory. The addition of the seven (7) PFAS is consistent with the Fiscal Year 2020 National Defense Authorization Act and requires PFAS reporting for these seven (7) PFAS for the 2024 reporting year. Additionally, in January 2024, the EPA finalized a rule that prevents companies from starting or resuming the manufacture or processing of 329 PFAS that have not been made or used for many years without a completed EPA review and risk determination. In February 2024, the EPA released two (2) proposed regulations under the Resource Conservation and Recovery Act (RCRA) to protect communities from PFAS and other emerging contaminants of concern. These rules would add nine PFAS to the list of RCRA hazardous constituents.

What Does This Mean?

Since PFAS are found in many industries and products, they can be found anywhere. With the ability to impact human health and the environment, PFAS will continue to have increased regulatory scrutiny, which includes increased regulations. The liability for impacts to the environment and bodily injury will lie with various industries and will subsequently trigger large cleanup efforts and/or litigation. It is imperative that property owners and operators evaluate the history of their sites and ongoing operations to determine if they could be liable for PFAS. The responsibility will fall on the owner and/or operators at sites to remediate and/or to eliminate the bodily injury exposure. Additionally, many states are now requiring sampling for PFAS when there is an open environmental case regardless of whether there is an immediate perceived exposure. The increased sampling efforts inherently increase the number of owners/operators who are liable. Pollution liability coverage is one way to potentially mitigate the increased risk of PFAS and other emerging contaminants.

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About the Author: Samantha Linton is a Vice President with the Environmental and Construction Professional Division at Distinguished Programs. Ms. Linton has over 11 years of experience in underwriting of environmental and construction insureds.

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