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Have You Heard About the Emerging Contaminants?

By: Ted A. Warpinski

Well, it turns out they have been around for a long time but, like many industrial chemicals, it is really the knowledge about their persistence in the environment and toxic effects to people that seems to be emerging. The emerging contaminants I am writing about are known in the environmental field as PFAS, which stands for per- and polyfluoroalkyl substances.

PFAS have been in the local news recently in connection soil and groundwater contamination issues in Marinette and Peshtigo, Wisconsin. In mid-March, Tyco Fire Products, a maker of firefighting foam that historically contained PFAS, announced that it is working on plans to extend municipal water supplies to areas served by private wells due to groundwater contamination from its facility in Marinette. There have also been private party lawsuits recently filed related to the Tyco PFAS contamination.

While PFAS are making their presence known in Wisconsin, they have made even bigger news across the country over the past few years. Everyone is familiar with Teflon, the non-stick coating used on cookware. A little more than two years ago, Dupont and Chemours agreed to pay nearly $700 million to settle thousands of lawsuits in West Virginia arising out of a leak that contaminated water supplies. And, closer to home, in early 2018 3M agreed to pay the State of Minnesota $850 million to address groundwater contamination arising out if its manufacture of ScotchGard—another product made with PFAS.

Not only are PFAS found in firefighting foam, Teflon and ScotchGard, they are found in a wide range of consumer products. There is emerging scientific evidence that PFAS can lead to low birth weights, immune system disorders, thyroid disorders and cancer. These risks led the United States Environmental Protection Agency, in 2016, to establish a health advisory level for PFAS in drinking water of 70 parts per trillion (ppt)—which is an extremely low standard. PCBs for example, have a Safe Drinking Water Standard of 500 ppt. Benzene, a cancer causing component in gasoline, has a drinking water standard of 5 parts per billion.

While the EPA has set this PFAS health advisory level, the enforceability of this standard has been questioned because the EPA has not established a “maximum contaminant level” or MCL under the Safe Drinking Water Act–though this may be changing as well. In mid-February of this year, the EPA also announced a PFAS Action Plan—where it would formally develop a MCL for PFAS. If successful, this would be the first new “MCL” in more than twenty years.

The Wisconsin Department of Natural Resources is also focusing more on PFAS. In 2018, the DNR declared that it had authority to regulate PFAS under what is known as the Spill Law and, also this past February, the DNR announced the formation of a PFAS Technical Advisory Group—the goal of which is to examine the “what, where, when and how of PFAS investigation and remediation.”

On a more concrete level, the DNR has also decided that it would change how it handles the issuance of “Certificates of Completion” under the state’s Voluntary Party Liability Exemption (VPLE) program. In short, the VPLE program allows a party to work with the DNR to investigate contamination on their property and, after any discovered contamination is cleaned up, the DNR would issue a Certificate of Completion, which would essentially absolve that property owner(s) from any potential future environmental cleanup responsibility. A VPLE Certificate can be very valuable as it takes past environmental liabilities off the table in any land transfer. Now, that may not be the case as the VPLE Certificates will only extend to hazardous substances that were actually investigated. Since most property owners never tested for PFAS, this means they would not be covered by a VPLE Certificate.

What does this all mean? For individuals who live near possible PFAS contamination, it may be that there is an emerging answer to their health problems and a possible cleanup on the way. For those in business or real estate, it should raise the question of whether that Phase 1 or Phase 2 environmental assessment considered the potential for PFAS related issues and it should create an extra level of due diligence to be sure that future transactions consider this emerging liability.

Ted A. Warpinski is an attorney with the law firm of Davis|Kuelthau in Green Bay. His practice areas include environmental law and litigation, including toxic torts, insurance and land use disputes. He can be reached at twarpinski@dkattorneys.com or 920.431.2236.

This article will appear in the April edition of The Business News