Persistent Liabilities - Navigating PFAS Risks

CRISIS MANAGEMENT FEATURE PERSISTENT LIABILITIES - NAVIGATING PFAS RISKS

By: Ian Ross Ph.D. Tetra Tech, UK

INTRODUCTION

There are a growing number of lawsuits are being filed against polluters by communities and businesses impacted by PFAS contamination [1]. Some $212M was recently paid to a PFAS-impacted community in Australia, located along a 9-mile PFAS groundwater plume, caused by use of firefighting foams, which impacted the drinking water supply to the town of Katherine [2, 3]. The recent settlement from a district court in Sweden where compensation was awarded to plaintiffs who had been exposed to PFAS in drinking water, on the basis that elevated levels of PFAS in the blood being classified as a personal injury, may indicate the direction of future litigation[4]. There are multiple potential liabilities to consider when managing PFAS use in firefighting foams, from the perspective of legacy usage and moving forward to ongoing use and containment of foams. Liabilities may be perceived to primarily result from the need to manage environmental impacts of PFAS to soil and groundwater as a result of using PFAS-containing firefighting foams (C6 and C8). However, there are potentially further liabilities associated with PFAS impacts to pipework and infrastructure, disposal routes applied for foam and equipment, land transactions and methods used for treatment of PFAS and site remediation. The properties that PFAS possess need to be understood to manage the environmental liabilities they potentially pose. As regulations continue to be promulgated addressing and increasing number of PFAS in multiple parts of the world this article helps to assist with identification and management of environmental liabilities and risks associated with use of PFAS in firefighting foams. STAYING AHEAD OF THE REGULATIONS

As per- and polyfluoroalkyl substances (PFAS) are increasing discovered in drinking water, concerns over potential liabilities associated with ongoing use of Class B firefighting foams containing this whole class of chemicals are increasing. In some geographies the regulatory focus targets only perfluorooctane sulphonate (PFOS) and perfluorooctanoic acid (PFOA), which with their precursors are termed C8 PFAS. However, an increasing number of locations have regulations addressing many more PFASs including C6 varieties, with restriction on future use of C6 PFAS proposed in Europe. It is inevitable that C6 PFAS will be subject to environmental regulations across the developed world over the forthcoming years. Regulations are also being enacted to prevent the use of C8 PFAS foams for testing and training in Europe and many US States. Stockpile regulations in the UK and Europe mean that if more than 50L of a PFAS foam is held, it needs to be tested using the total oxidizable precursor assay to determine whether it represents a notifiable stockpile of persistent organic pollutants, meaning it’s volume needs to be reported to regulators annually.

DUE DILIGENCE CONSIDER ACQUISITIONS AND DIVESTMENTS

When considering the purchase or sale of many types of businesses, the prior use of PFAS in firefighting foams and many other products can factor into determining whether the site can represent a potential future environmental liability. For example, if a fire suppression system was present on the site and accidental discharges occurred or if testing involving partial deluge events were done, this could have released foam to ground. As PFAS can form multiple layers on surfaces, there is potential that residual PFAS remain on the site as a source of contamination. Considering advancing regulations to address multiple PFAS, use of a comprehensive tool to chemically analyse the presence of a wide range of differing PFAS at sites where investments or divestments are planned is a wise approach. The use of the total oxidizable precursor (TOP) assay to assess for the presence of PFAS can provide a more robust approach to determining whether there are potential future liabilities. This analytical technique can detect and quantify a much larger range of PFAS than the conventional analytical methods that are commonly used to examine environmental matrices. Many of the proprietary PFASs present within firefighting foams that are not detected using conventional analysis can be visualised using this tool, which then provides more confidence regarding whether a site is or is not impacted by PFAS.

SOIL AND GROUNDWATER IMPACTS

The loss firefighting foams containing C6 or C8 PFAS to ground or disposal to a sewer network can create potential future liabilities. From a land contamination perspective, local regulations considering how land is determined to be contaminated can vary significantly depending on the country or state where a site is located. Land contamination regulations

generally use a process which aims to determine whether harm is being caused by chemicals detected on a site. This is usually done by the development of a conceptual site model (CSM) which identifies if the source of the impacts (e.g. detections of PFAS in soils or concrete surfaces) are migrating via a pathway (e.g. groundwater) to a receptor (e.g. drinking water supply). As many PFAS form films on surfaces, this means they can remain present at fire training areas for decades slowly releasing dissolved PFAS which can then travel some miles in water to impact receptors. At many sites there may be no pathway to sensitive receptor, so the site may not be classed as contaminated. A portfolio review of the geology, hydrogeology and location of receptors at multiple sites, can determine if some sites are more likely than not to be posing a risk of harm.

MAKING WISE FOAM CHOICES

To avoid future environmental liabilities, the wise choice is moving to a non-persistent foam such as some of the fluorine free foams currently available that don’t contain PFAS or persistent chemicals such as siloxanes. The extinguishment performance of these biodegradable F3 foams being proven in multiple sized tests since 2002, with large scale tests performed by LASTFIRE demonstrating that these F3 foams can extinguish real world scale fires [5, 6] [7-9]. Finding a foam that has Green Screen or HOCNF certification will be essential to mitigate future potential environmental liabilities. Replacing foams containing PFAS with those containing any type of non-biodegradable organic will inevitably lead to liabilities as the persistent molecules remain in the ground, which can potentially impact the property value of a site. Given the continued use of PFAScontaining foams will likely incur significant environmental liabilities for the end user, switching to nonpersistent F3 foams is a wise decision with use of foams containing persistent siloxanes inevitably creating future potential environmental liabilities. As many fluorine free foams do not contain any persistent compounds, the potential future environmental liabilities associated with their use are significantly lower. WASTE DISPOSAL

With incineration of liquids wastes containing PFAS not proven to be effective for treatment of liquid wastes, there are potential future liabilities associated with use of this disposal route. Incinerator ash pits have been determined to be sources of PFAS to groundwater. Alternative technologies are becoming commercially available using cement kilns, sonolysis, plasma, electrochemical oxidation, and supercritical water, but thorough examination of their efficacy is required. Waste pipework from fire suppression systems can be coated with layers of PFAS, these can contaminate F3 foams to g/L levels when the foam changeouts occur. Alternatively significant PFOS can appear in C6 foams within fire suppression systems as a result of using water to attempt decontamination of pipework which previously held other firefighting foams. The use of effective decontamination agents and procedures helps to mitigate this liability. Gifting or selling waste foams and other fire suppression infrastructure, such as hoses and emergency rescue vehicles (e.g. ARFF vehicles), can also incur future liabilities and these are likely heavily contaminated with PFAS. Effective decontamination would be required before the sale or transfer of ownership occurs. Treatment Technologies Certain treatment technologies, such as injection of activated carbon to aquifers, just concentrate PFAS in the ground and do not eliminate it, so do not alleviate potential future environmental liabilities. Treatment technologies such as ozofractionation converts PFAS into shorter chain varieties which can evade detection and be discharged. This can also lead to potential future liabilities as an increasing range of PFAS are regulated. Careful consideration should be given to remediation of all PFAS that have the potential to pose harm to receptors on individual sites, bearing in mind that a toxicological understanding of many PFAS is still in its infancy.

SUMMARY

There are a wide range of differing PFAS that are being subject to regulations and litigation focussed on members this class of contaminants is increasing. The properties PFAS possess can lead to a wide range of potential liabilities, so expertise in understanding their environmental behaviour, chemical analysis and status of regulations can be key to managing the potential environmental liabilities they pose.

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