Featured in InsideEPA’s Inside PFAS Policy Newsletter
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RALEIGH — Legal and other experts are warning dischargers and others that gathering data on PFAS releases may inadvertently trigger reporting requirements, although doubts remain about the scope of reporting obligations amid uncertain federal regulation and a patchwork of state PFAS laws.

“The ramifications of detecting PFAS are very significant,” said Ned Witte, an attorney with Earth & Water Law, during a March 12 session of the Air & Waste Management Association’s “The Science of PFAS: Piecing Together the Puzzle” conference here, titled “Legal Challenges with Data Collection for PFAS-Related Matters.”

For example, Witte spoke about a client, a Wisconsin chemical blending and distribution business, that was hesitant to test for per- and polyfluoroalkyl substances (PFAS) in soil and groundwater as part of a PFAS risk analysis. In Wisconsin, any detection of a “hazardous substance” must be reported to the Department of Natural Resources, which would then trigger further actions to investigate and respond to the contamination.

“I think it’s a really tough issue for a lot of parties because they don’t want to do the testing, but it comes into play in transaction, it comes into play in litigation, and I think that that’s something that we’ll continue to see and have to deal with,” Witte said.

In one case, a group of California residents sought to bring a class action suit against razor company BIC based on claims that the company had neglected to disclose that its razors contain PFAS, citing information the company had submitted under a Maine reporting law, though the plaintiffs eventually dropped the suit.

But Witte also emphasized the danger of not acting appropriately on PFAS risks, saying “it’s a little like doing a compliance audit, getting the results, putting it on the shelf and not doing anything with those results.”

As more is understood about PFAS contamination and its various sources, more entities may be subject to testing and reporting requirements, practitioners said. And at the state level, where PFAS regulation is far more active, environmental agencies may be relying on industry data, and therefore industry sampling, to inform their regulations.

“If you’re working with a regulatory agency, a likely question will be, ‘Well, why didn’t you test for everything?’” said Witte. “‘Why didn’t you test for levels irrespective of whatever level you identified?’ . . . I call it, sort of, ‘regulator curiosity,’ where we’ve conducted an investigation, we think that we’ve worked with a party to define the nature and extent of contamination in a groundwater process. And yet, I’m seeing that regulators always would like one more, one more well, or [they ask] ‘Why don’t you just, sort of, define and do another round of sampling?’”

He continued, “To me, what we’re doing — we ‘the regulated community’ — is we’re, sort of, building the universe of data and knowledge right now for regulators, and I don’t think that we should be doing so all the time. So, I think it’s appropriate to push back a little bit now and then.”

But even at the state level, there is still uncertainty about what PFAS data could trigger reporting. For example, Wisconsin’s “hazardous substances” definition is currently subject to litigation on whether rulemaking is required to include PFAS within that definition, as it was not originally identified in it.

State Variations

And across different states, the patchwork of PFAS regulations with their varying requirements has proven difficult for companies that operate there that may face different compliance requirements in multiple states.

“We really need to be paying attention to what state we’re in, and for a lot of our clients, that creates confusion, because they’ll have a site in North Carolina, they’ll have a site up in Michigan, they’ll have a site in Arizona,” said Leonard Mankowski, vice president of emerging contaminants at consulting company WSP. “[They’ll think,] ‘Wait, why do I need to apply something here, and I don’t have to do it there?’”

He continued, “The ramifications of the data changes [based on] where we are, because we have some inconsistency across the country. So, it’s super important for us, as practitioners, as consultants, to be aware of the regulatory environment, in particular, that we are in. That helps inform the data gathering that we want to collect and the consequences of the collection of that data.”

On the federal level, similarly, the Trump EPA has yet to announce whether it will review or reconsider the Biden EPA’s drinking water limits for six PFAS or its designation of two legacy compounds as “hazardous substances” under the Superfund law, both of which may lead to a barrage of reporting requirements.

So, groups will have to wait and see what their reporting liability could be under those rules.

“Right now, it’s silent out there,” Witte said. “You know, yesterday I looked at leading law firms’ websites and their environmental pages to sort of see what [] lawyers [are] saying . . . and it’s, like, nothing.”

“Nobody’s talking about this right now, because we don’t know. We don’t know what’s going to happen. I think we can speculate what’s probably going to happen, which is that some affirmative action is probably going to be taken to step back from the identification of PFAS as a hazardous substance and to withdraw, in some fashion, the [Maximum Contaminant Limit (MCL)] identification, or if not, then maybe just pump the brakes entirely and not enforce them.”

Taryn McKnight, the PFAS practice leader for Eurofins, which provides laboratory testing services, cautioned parties to think critically about the type and size of PFAS data they want to generate, emphasizing how different sampling needs, such as compliance, due diligence or exploratory testing, require different considerations.

Due Diligence

“We always have to start with answering the question, ‘What are we generating these data for?’” said McKnight. “I think sometimes we take that for granted, and there’s maybe a bit of a knee-jerk reaction to just get out there and collect some data without really understanding what questions you expect that data to answer, and then what becomes actionable about those data.”

For groups that are collecting data to show due diligence, for example, it can be “a bit of a gray area” because, unlike for compliance, the requirements may not be “spelled out by the letter of the law for what you need to test for.”

“And this becomes a bit of a dance between the buyer and the seller, what data they feel is needed, what data they’re willing to concede on providing, and what triggered the decision to . . . generate those data,” McKnight said.

Furthermore, McKnight said she sees groups using Non-Targeted Analysis (NTA) methods, which detect unknown PFAS analytes, in an indiscriminate attempt to just gather more data, before understanding what that data means.

“There are limitations with the representativeness of those data, something like the [Total Oxidizable Precursor (TOP) assay], although it represents the massive unknown precursors in a sample, it is not meant to mimic how those precursors would transform in the environment,” McKnight said.

She continued, “And so, that’s really important to understand about the representativeness of those data. Total organic fluorine is not actually identifying PFAS, it’s identifying organic fluorine. And so, depending on your definition of what a PFAS is, that may or may not be limited to PFAS.”

Mankowski further emphasized the importance of really understanding the NTA data that is generated.

“In particular, the NTA data . . . is going to be something that we see in litigation,” Mankowski said. “That is definitely going to be one of those spots where that data shows up, and so if you haven’t gone about it the right way, no one wants to be sitting in a deposition where that’s pointed out.”

And once any PFAS data is generated, you can’t “un-ring that bell,” as McKnight pointed out.

“If you don’t know how you’re going to explain where it came from, and then what becomes actionable about those data, that’s kind of the thought process that we should be doing here,” McKnight said. — Pavithra Rajesh (prajesh@iwpnews.com)

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