We recently communicated about PFOA's and the problems with them on your properties and in your products. The recent spot light on this family of chemicals and the increased awareness of their issues, has provoked a world-wide regulatory response. The banning or severe restriction on PFOA has created a number of issues for you and your business. Being designated as both a carcinogen and a source of reproductive harm has placed these chemicals on the Proposition 65 list and targeting in other states and by EPA.
First if you own property that is potentially contaminated with PFOA this creates human health and property value issues for your facility and your workers.
In addition to California's Prop 65 listing, New Jersey has focused its interest on PFOA's. On March 25, 2019, NJDEP issued a Statewide PFAS Directive, Information Request and Notice to Insurers chemical companies (the Respondents). NJDEP says that PFAS compounds are "ubiquitous in New Jersey" and calls them "a statewide public nuisance" because they resist degradation and bioaccumulate.
NJDEP requires that the Chemical Companies:
Non-compliance with the Directive, NJDEP notes, may lead NJDEP to (i) seek damages equal to three times the cost of arranging for cleanup and removal of the discharge; (ii) use its authority under the New Jersey Spill Compensation and Control Act (Spill Act) to place a lien on a Respondent's real and personal property; and (iii) impose penalties.
- provide NJDEP, within 21 days of receiving the Directive, information on:
(A) Each Respondent's manufacture, supply, transportation, storage, use, treatment, disposal and discharge of three specific PFAS compounds: perfluorononanoic acid (PFNA); perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS)
(B) The ability of the Respondents to pay for or perform the cleanup and removal of PFNA, PFOA, and PFOS
(C) Every "change of ownership" as defined by the New Jersey Industrial Site Recovery Act involving their "current or former sites in New Jersey"
- identify, within 21 days of receiving the Directive, the nature, extent, source and location of discharges of PFNA, PFOA, PFOS and any "GenX compounds" - "i.e., those short-chain PFAS chemicals used in any manufacturing process as a replacement for PFNA, PFOA and/or PFOS"
- meet collectively with NJDEP, within 30 days of receiving the Directive, to discuss a good faith estimate for future costs to investigate, test, treat, cleanup, and remove PFNA, PFOA and PFOS from the environment
- notify their insurers that NJDEP may bring its claims for costs of cleanup or damages directly against an insurer or anyone else providing evidence of financial responsibility
In March 2019, NJDEP filed four civil actions in four different counties - Salem, Gloucester, Middlesex and Passaic - seeking in each case from various Respondents reimbursement for costs NJDEP incurred to respond to PFAS contamination, declarations of liability for future cleanup costs, payments for natural resource damages, and restoration of natural resources.
These actions by NJDEP do not just exist based on spills. They also include product liability claims. These include defective design and failure to warn.
PFOA and PFOS as of April 1, 2019 are now listed as hazardous substances by NJDEP. The notice of that proposal also proposed to set a maximum contaminant level (MCL) of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFOS under the New Jersey Safe Drinking Water Act. NJDEP also proposes to amend its Private Well Testing Act rules to require testing for PFNA, PFOA, and PFOS. To the extent you have PFOA family chemicals on your property, expect increased state enforcement issues.
Secondly if your use ground water in processing or even cleaning product, the risk of contaminating your products clearly exists.
I have checked in with multiple test labs and consultants. They all agree that this can and has happened. Their iniquitousness in ground and drinking water is startling. Acceptable levels are in the parts per trillion levels.
Thirdly, and most likely to be important, the banning of these chemicals exposes you and your products to contaminated ingredients entering your products.
Our experience with lead and phthalates is instructive. With the CPSIA and its crack- down of lead and phthalates, came a much increased problem with lead and phthalates being "snuck in" to products being sold. Manufacturers in Asia stated that their products were lead and phthalate free when in fact they were not. Whether by fraud or innocent mistake, contaminated product entered the US market place.
The result was a number of Proposition 65 and other chemical exposure claims creating exposure to attorney's fees and damages in the multiple millions of dollars. Recalls, destruction of contaminated product, fines and lost personnel time all added up to more millions of lost dollars. The presence of indemnification clauses in "big box store" and major "internet retailer" contracts moved the risk squarely on the shoulders of U.S. manufacturers, importers and distributors.
We may see these patterns of behavior with the PFOA family. Manufacturers, importers and distributors of product in the US are clearly on notice with respect to these risks. Retailers and insurers will be diligently pursuing any entity that sells product with PFOA chemicals in them.
We are seeing concerns about consumer products tainted with PFAS. Many common household products contain PFAS, including cookware, carpets, food packaging, clothing, and cosmetics.
Washington became the first state in the country to pass legislation banning PFAS tainted food packaging products. Several other states including New York, Rhode Island, Massachusetts, and Maine have introduced bills to do the same, while states such as California have proposed legislation to require disclosure and reporting requirements for products that may contain the chemicals. Companies have begun voluntarily eliminating PFAS from product lines, a trend that may intensify.
I strongly suggest that the PFOA family of chemicals be added to your prohibited substances list with all your suppliers. They should also be added to any contracts and indemnification contracts with them.
You should require negative test results from your suppliers and perform sampling and screening tests in the US on product received from outside the country and even US manufacturers.
You should know that quantity limitations are in the parts per trillion on these chemicals. It may require extra resources from testing labs and greatest cost in testing.
As with other new standards, the testing industry may lag behind a little on being ready for a big testing push. You should reach out to your usual testing labs, both foreign and U.S. now.
There will be much more to come over the next few months.