United States: Law Elevated — PFAS, More Than Just Another Acronym

Last Updated: September 16 2019
Article by Trudy D. Fisher


So, what is PFAS? Simply put, PFAS (per and polyfluoronalkyl substances) is the term used for a family of approximately 5,000 individual man-made fluorinated chemical compounds that are used in our everyday lives. We have been using products containing older and newer versions of PFAS chemicals since the 1940s.

PFAS make your eggs not stick to your skillet, your cheesy pizza not stick to the box, that spilled glass of wine not stain your carpet, and helps your jacket and shoes keep you dry when you get caught in the rain. PFAS are present in a host of other products, too – from popcorn bags and paints to cosmetics, shampoo, conditioners, hand creams, toothpaste and dental floss.

PFAS chemicals also have a history of wide industrial applications, including extinguishing petroleum-based fires that occur typically at airports, refineries, fire training areas and military installations; enhancing oil recovery by use of chemicals that lower tension between liquids and generate increased oil production; inhibiting evaporation during petroleum storage; and suppressing mist from electroplating operations.

The widespread use of PFAS has given new meaning to the word "ubiquitous" – PFAS truly are everywhere. One of the reasons PFAS have become so heavily relied upon is their stability. These compounds have proven so stable that once they reach soil and groundwater regulators contend they remain there for years. The very purpose of the compounds – resiliency – makes PFAS chemically stable not only in products, but also in manufacturing waste streams and in the environment.

PFAS enter the environment in a variety of ways, as seen from these few examples of its use. PFAS remain stable through manufacturing processes and can enter the environment through wastewater treatment discharges, waste water sludges, industrial onsite disposal sites and commercial landfills, and especially landfills constructed and closed before 1990. That is when solid waste requirements for liners to protect groundwater were instituted. Other potential sources of PFAS are wet and dry atmospheric deposition and surface water runoff from PFAS-impacted land or runways and highways.

A growing firestorm of focus on PFAS is sweeping the country, creating a dual challenge for industry to keep up with federal and state regulatory developments and to evaluate potential litigation risks associated with using these chemicals in manufacturing processes and industrial applications.

The science and toxicology surrounding PFAS is unsettled at best. While the EPA protects public drinking water supplies through the Safe Drinking Water Act (SDWA) by monitoring for more than 90 drinking water contaminants, that list has never included any of the PFAS compounds. However, in February of this year, the EPA set the "health advisory" drinking water level at 70 parts per trillion for two of the PFAS chemicals that have been voluntarily phased out of use: perflurooctanoic acid (PFOA) and perflurooctane sulfonate (PFOS). The EPA has stated that it will begin the administrative process for establishing a drinking water standard by the end of this year.

Some states are not waiting on the EPA and have acted on their own to establish PFAS state-specific drinking water standards. At last count, 14 states have adopted the EPA health advisory standard and six states have adopted a standard more stringent than the EPA. All of these fast moving and dynamic developments yield regulatory uncertainties and create divergent government approaches across the country.

PFAS are considered "emerging contaminants" – chemicals that may pose a potential human health or environmental risk but do not have regulatory standards. Industry has a solid record of working through other emerging contaminants in the past – PCBs, MTBE in gasoline, TCE and 1-4 dioxane, just to name a few. PFAS seem to pose more of a challenge, not only because of their resiliency in the environment, but also due to the breadth of consumer and industrial uses. Lessons learned in the past from other emerging contaminants will be useful and informative as industries tackle current PFAS regulatory uncertainties.

We are already beginning to see the EPA and some states attempt to take a second look at dormant Superfund/CERCLA sites specifically for PFAS. Industry should be prepared to respond to the EPA and state environmental agencies as we anticipate regulatory efforts to bootstrap PFAS inquiries to permitting and compliance activities by federal environmental programs such as the National Pollutant Discharge Elimination System, Resource Conservation and Recovery Act (RCRA), Toxic Substances Control Act and the SDWA.

Against this murky regulatory backdrop, we are also seeing a groundswell of civil litigation across the country. Types of litigation include claims by individuals and businesses for personal injury, property damage and remediation costs arising from PFAS found in soil and/or groundwater; claims by municipalities/counties/public utilities for costs of remediation and installation of water filtration devices; RCRA citizen suits alleging imminent and substantial endangerment; state claims for natural resource damages for groundwater/drinking water contamination and costs of investigation and remediation by mid-stream PFAS industrial users as a proactive strike against PFAS suppliers and manufacturers for increased regulatory and remediation costs.

Industry has good arguments and defenses against the race to judgment on PFAS. There currently exists no standard for PFAS under any federal program that has withstood the rigors of a public process. The science and toxicological studies remain unsettled. Adding to the uncertainty, standardized laboratory methods are only available for drinking water and not for soil.

The alarms are real, however, and are reverberating. Industry's actions must be proactive, timely and deliberate. Being proactive includes understanding and identifying the existence of any regulatory and litigation risks squarely under the protection of attorney-client privilege. What chemicals are presently being used? What chemicals should be changed? What has been used in the past? What are the location and disposal practices for on-site and/or off-site landfills? Are contracts and indemnification agreements in place and sufficient? What did the company know and when did it know it?

The dynamic and unsettled world of PFAS requires a disciplined and thoughtful approach in maintaining attorney-client privilege throughout any assessment of risks associated with PFAS. As you can see, PFAS is not just another acronym. It will be with us for many years. Now is the time to evaluate all things PFAS in order to be ready for whatever the future brings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions