Regulatory Uncertainty Around PFAS Puts Planning into Focus for Industry
Members of the oil, gas and chemical industries are closely watching the development of regulations pertaining to per- and polyfluoroalkyl substances (PFAS), the functional constituents in aqueous film forming foams (AFFF).
For years, AFFF, which are very effective in the control and management of Class B fires, have been a critical component of incident preparedness and response actions. It is now known that PFAS are persistent in the natural environment and can be deleterious within biological systems. Consequently, state and federal environmental agencies have turned their attentions to developing regulations limiting PFAS concentrations in various environmental media.
The regulatory environment for PFAS resembles a patchwork spread across the country. The U.S. Environmental Protection Agency (EPA) is moving along with its approach but has yet to enact regulations, while many states have enacted their own regulations, and others are awaiting federal guidance. This has resulted in regulatory inconsistency, which adds a layer of compliance complexity to affected organizations that span multiple jurisdictions.
Developing scientifically sound and effective regulatory structures for a complex contaminant like PFAS can be a laborious and tedious process that takes years. This regulation development phase can put proactive and compliance-forward members of affected industries into a challenging limbo period. But it also presents a grace period in which organizations can methodically assess their operations and facilities — identifying areas of concern, developing action plans, and putting themselves in position to be well-equipped and ready to enact necessary change when required. However, certain triggers may short-circuit this grace period, requiring attention ahead of formal regulations. These triggers may include PFAS-containing spoils or waste streams that are subject to disposal facility acceptance criteria or the inclusion of PFAS in facility permits.
Years of AFFF use for incident response and preparedness exercises have no doubt resulted in areas of PFAS contamination in soil, surface water, groundwater, and waste materials in and around oil, gas and chemical assets — refineries, terminals, manufacturing facilities, etc. Many oil, gas and chemical industry representatives are concerned but are engaging in proactive steps to assess and understand the nature and extent of their organization’s PFAS responsibilities. Many are proactively seeking guidance, so they can do what’s right in the absence of agency direction.
While regulatory consistency has yet to arrive, oil, gas and chemical representatives would be best served by a watchful eye on the development of PFAS regulations and get involved so their practical and pragmatic voices are heard. Meanwhile, proactively assessing and planning for PFAS responsibilities and necessary actions will result in better cost control and more effective liability management.