ADG Insights | PFAS contamination: An emerging threat and liability

Author:Mr Scott H. Reisch, Marta Antonina Orpiszewska and Rebecca H. Umhofer
Profession:Hogan Lovells


Companies operating in the aerospace, defense, and government services (ADG) industry are increasingly being impacted by regulatory scrutiny of a group of man-made materials called per- and poly-fluorinated alkylated substances (PFAS). Beginning in the 1970s, PFAS were widely used in firefighting foam at military bases, airports, and large industrial facilities. These facilities are therefore especially susceptible to PFAS contamination. ADG companies that have historically used PFAS, including in firefighting operations, may be responsible for environmental clean-up of military sites and may be susceptible to other PFAS-related liabilities that we discuss further below.

The impact of PFAS on human health and the environment is currently not well understood, but some scientists have identified these chemicals as suspect carcinogens and some studies link them to reproductive disorders. Alleged health impacts caused by PFAS have been prominently featured in the news media. Recent attention on these "emerging contaminants" has focused public attention on the widespread presence of these contaminants in the environment and in drinking water sources in the United States and internationally.

In February 2019 the Environmental Protection Agency (EPA) published a PFAS action plan2 that outlines the steps the agency is taking toward establishing a comprehensive regulatory regime to address PFAS. Several states also have undertaken measures to regulate these chemicals. Below, we provide a brief overview of these chemicals and their potential impacts on human health and the environment, summarize current and proposed regulation of PFAS, and advise ADG companies on several actions they can take to address the potential liabilities associated with PFAS.

PFAS: What are they?

PFAS are chemicals that are widely used in industrial and consumer products including in firefighting foam, waterresistant and nonstick fabrics and materials such as waterproof clothing, Teflon products, and other household products such as stain-resistant carpets. U.S. manufacturers began to phase out PFAS production of certain so-called "long-chain" PFAS in 2002. EPA subsequently led a voluntary phaseout of "longchain" PFAS that was completed in 2015.3 PFAS are still used internationally, however, and companies in the United States regularly import products containing PFAS.4

There are hundreds of chemicals that are classified as PFAS including perfluorooctanoic acid...

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