PFAS Liability Litigation and the Construction Industry – Act Now or Pay Later

PFAS Liability Litigation and the Construction Industry - Act Now or Pay Later

For decades, per- and polyfluoroalkyl substances (PFAS) have been used in the production and composition of many products used daily throughout Florida and across the country. Prized for their desirable properties, PFAS chemicals can be found in products like food packaging, cookware, stain-resistant textiles and fire-fighting aqueous film-forming foam (AFFF). Despite the serious health and ecological dangers posed, these chemicals are still found in products today. PFAS use and exposure thresholds are currently largely unregulated. The EPA has no federally enforceable PFAS standards.[1]  And while some states have established legally enforceable values for certain PFAS in water, soil and recently air, the vast majority of the states and their regulatory agencies have not established regulatory standards for acceptable levels of PFAS. The construction sector is just one among a broad range of other industries that utilizes PFAS products and it is important for the industry to take notice.

Known as highly persistent or “forever chemicals,” PFAS pose potential human health risks, are toxic and persistent in the environment, do not biodegrade, and move readily through soil and groundwater. The buildup of PFAS in the human body has been linked to health concerns such as thyroid disease, liver damage, certain cancers, low birth weights and fertility issues, among others. Florida is particularly vulnerable to soil and water contamination, as these PFAS contaminants are highly transmissive once in the environment.

Due to these toxic characteristics, the construction industry should act to protect workers and professionals who work with or around PFAS chemicals. Best practices concerning personal protective equipment and exposure thresholds should be implemented and enforced at all work sites in order to protect workers from potential danger.

So where can construction personnel come in contact with PFAS material?  Perhaps a better question may be where can’t construction personnel come in contact with PFAS materials.  PFAS chemicals have been found in construction and building materials inclusive of:

  • Lubricants and greases;
  • Architectural membranes (i.e. in roofs);
  • Cement additives;
  • Cables and wire insulation;
  • Gaskets and hoses;
  • Paints and coatings;
  • Fuel additives;
  • Solvents;
  • Flame retardants;
  • Glass surface treatments;
  • Floor coverings including carpets and floor polish (soil-release finish for carpets, floor polish, etc.);
  • Sealants and adhesives;
  • Stain/grease repellants;
  • Firefighting foams; and
  • Other Industrial/manufactured materials.[2]

With the regulatory landscape continuously evolving and as new scientific information emerges on PFAS, construction businesses should take steps now to insulate themselves from potential liability by:

  1. Properly reviewing the products they use and whether those products contain PFAS materials;
  2. Use the best practices for PFAS storage and disposal; and
  3. Exercise heightened safety practices for workers utilizing products containing PFAS.

It can be extremely costly and complex to remediate a PFAS-contaminated site so it is important to ensure that your business does not become a potential responsible party as a result of contamination. The present cost of remediation and monitoring PFAS substances in soil, groundwater and surface water over the span of several years or decades is anticipated to be shocking. Prudent businesses should consult with a lawyer or environmental engineer now to assist and ensure that proper procedures are in place.  Failure to do so may result in severe consequences for the company and may even lead to future investigatory attention as the regulatory landscape catches up.


[1] The EPA has merely issued advisories. 

[2] J. Glüge , M. Scheringer , I. T. Cousins , J. C. DeWitt , G. Goldenman , D. Herzke , A. B. Lindstrom , R. Lohmann , C. A. Ng , X. Trier and Z. Wang , “An overview of the uses of per- and polyfluoroalkyl substances (PFAS),” Environ. Sci.: Processes Impacts, 2020, 22, 2345-2373 (source link)

  • Brett R. Renton
    Partner

    Brett Renton is a partner in the Orlando office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group.

    Brett is a Martindale-Hubbell AV® Preeminent™ rated attorney and has been recognized by Florida ...

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