Emerging contaminants, which are newly recognized or previously unregulated substances found in the environment, pose various challenges and opportunities for insurers, attorneys, and environmental consultants working with industry, requiring them to adapt their services, risk assessment methods, and services to address these evolving risks.
In our recent webinar, entitled “Advanced Environmental Forensics in Emerging Contaminant Detection and Site Remediation,” Tracy Taszarek, Consultant at Antea Group, moderated a discussion among Ted Healey, B.S., Senior Scientist at NewFields; Jack Sheldon, PFAS Service Line Lead at Antea Group; and Jake Bartlett, Associate at Vorys, Sater, Seymour, and Pease, on how the development of cutting-edge forensic techniques and methods around emerging contaminants can be utilized to understand risk and potentially determine the origin of contamination sources and timing on the release of those sources.
They also briefly examined the characteristics that define an emerging contaminant and provide the current regulatory status of per- and polyfluoroalkyl substances (PFAS), microplastics, produced water, and pharmaceuticals and personal care products (PPCPs).
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What are Emerging Contaminants?
First, emerging contaminants are not typically new substances. Many have existed for decades and can be physical, chemical, biological, or radiological. They often come to attention through new research, fish kills, or other events. Despite their longevity, data on these contaminants is often limited, but they are known to have widespread impacts.
Emerging contaminants can trigger regulatory programs like the Safe Drinking Water Act, CERCLA, and the Clean Water Act, as well as many state regulations. The list of emerging contaminants is growing, with PFAS receiving significant attention alongside substances like lithium, 1,4-dioxane, vapor intrusion, and ethylene oxide.
Rudimentary Forensic Techniques
Forensic investigations for emerging contaminants can start with a basic desktop evaluation. For example, an East Coast shipbuilding operation faced a historic fire where PFAS-containing fire fighting foam was used. Although the current operation didn’t believe they contributed to PFAS impacts, a deeper desktop search revealed PFAS sources in fire extinguishers, paints, resins, adhesives, and even their rodenticide treatment program. This highlights the importance of thorough forensic evaluations, in this case where an insurance policy with a PFAS exclusion was under consideration.
Manufacturing facilities can also benefit from a PFAS screening process to assess risks. This includes examining historical and current land use, neighboring properties, supply chains, wastewater, air emissions, and fire suppression systems. Using aerial photographs with data plotted can also help differentiate PFAS sources, as illustrated by a case where a manufacturing facility and a landfill were identified as PFAS contributors, leading to shared costs for residential water supply.
Advanced Forensic Techniques
Environmental forensic investigations start with fundamental questions about impacted areas, contaminant sources, site history, and contaminant migration. Standard EPA methods help understand chemical nature and extent, while modified forensic methods provide more detailed analysis.
In PFAS analysis, fingerprinting is essential for identifying sources and understanding regulatory environments. PFAS comes from various sources like paints, pesticides, and firefighting foams, with evolving regulations at both federal and state levels. New methods, such as the Direct Analysis in Real Time High-Resolution Mass Spectrometry (DART HRMS), are enhancing detection and analysis, helping to pinpoint specific PFAS compounds and their sources.
Standard forensic methods often use shorter run times and provide quicker results, while detailed forensic methodologies offer in-depth analysis, identifying non-target compounds that standard methods might miss.
Plastics: Micro and Macro
Fingerprinting plastics, similar to other contaminants, is becoming crucial. Plastic production is often complex and includes numerous additives. In fact, the production of plastics reached 460 million metric tons in 2019, with 15-20% being additives. Microplastics and macroplastics vary in size and composition, requiring extensive research and regulation. Identifying these plastics and their environmental impacts is critical for future research and regulation.
This fingerprinting process is essential as we continue to use and produce plastics at an increasing rate, and years of chemistry will be needed to look at many of these emerging plastics and their additives.
Forensics in Legal and Environmental Strategies
It’s important to realize that “emerging contaminants” is a framework without a set definition or list in EPA regulations. The lack of a fixed list or criteria allows regulatory flexibility but also creates uncertainty. As a result, there are challenges in regulation, such as ubiquity, jurisdictional limits, and analytical uncertainties. Forensic analysis is an important tool to help limit uncertainty and ultimately legal liability.
Legal Considerations and Forensic Strategies
Emerging contaminants impact legal scenarios, particularly in transactional due diligence and state revolving loan funds. In these scenarios forensic analysis can play a crucial role in identifying the extent and sources of contamination, helping clients understand their liability before purchasing properties or upgrading treatment technologies.
Forensic analysis will also continue to be used in site remediation and litigation for similar reasons – primarily to determine if a party is liable for environmental contamination. In both settings, forensic analysis can help a party understand if contamination can be traced to historical operations, neighboring properties, or other sources. Important for the insurance context it can also help determine if a release occurred during a policy period. Recent caselaw in the sixth circuit may serve as a foreshadow of the importance of forensic analysis in litigation and site remediation.
In Hardwick v. 3M, the court dismissed PFAS claims due to the failure of plaintiff’s allegations to specifically trace PFAS compounds in his blood to defendants and their actions (or products). If such allegations were traceable to defendants, forensic analysis may have proven to be a key part of the defense.
Alternatively, forensic analysis exists as a means for plaintiffs or government regulators to prove their cases by establishing the source of contaminants in litigation and site remediation. Overall, forensic analysis is an important tool because it provides that necessary additional data and information that can lead to better, clearer legal outcomes.
Key Takeaways
Forensics at a Basic Level: Simple tools like desktop searches and aerial photographs with plotted data can be effective.Growing PFAS Forensic Tools: Increasing technical knowledge and analytical tools are enhancing PFAS investigations.Interest in Other Contaminants: Forensic tools for other emerging contaminants are gaining attention. What will be next? Perhaps, microplastics or 6PPD quinone?Importance in Property Transactions and Other Risk Scenarios: Forensic analysis is becoming more important in due diligence, insurance, and legal scenarios, and that will continue.
As we continue to explore and develop forensic methodologies, their role in managing emerging contaminants will only become more vital. Forensic analysis not only helps identify and mitigate environmental risks but also supports legal and regulatory frameworks, ensuring better outcomes for both businesses and the environment.
Questions? Reach out to our Insurance Industry Experts and our Environmental Remediation practitioners for support.
