ENERGY AND ENVIRONMENTAL
Partner Insights
PFAs and Your Business An Evolving Challenge
You may not be on a first name basis with per- and polyfluoroalkyl substances (PFAS), but these synthetic chemicals are pervasive in consumer, commercial and industrial products. First developed in the 1940s, there are thousands of PFAS compounds found in hundreds of everyday products that most people presume are harmless, from stain- and water-resistant fabrics and carpeting, to packaging, cleaning products, and nonstick cookware. Initially praised for their unique ability to repel both oil and water, PFAS’ distinctive properties and ubiquity have led to an unprecedented set of challenges for scientists, regulators and businesses.
Commonly known as a “forever chemicals,” PFAS resist degradation and decomposition, making them permanent denizens of our environment. PFAS can accumulate in people, animals and the environment over time. While we are still learning about PFAS,
we know that they are hazardous to human and planetary health. People can be exposed to PFAS by touching, drinking, eating, or breathing materials that contain PFAS. They can enter the food supply through plants and animals and in very small amounts through packaging, processing, and cookware. Centers for Disease Control and Prevention (CDC) studies show that most people in the United States have been exposed to PFAS.
Additional research is required to answer critical questions such as how much PFAS is present in the environment, how PFAS move through the environment and how frequently people come in contact with PFAS. Research is complicated by the challenges of developing effective laboratory methods to find, identify and measure PFAS concentrations in the environment and determine the efficiency of various removal technologies. Scientists are grap -
pling with how to destroy and safely dispose of PFAS compounds “removed” from the environment. As scientific research on PFAS continues to develop, regulatory action is also increasing. A myriad of regulations that will affect business operations are currently on the books, with many more to come. Challenges associated with PFAS are compounded by the fact that the litigation and regulatory landscape move at a different pace than the scientific community. It’s a thorny process from beginning to end for regulators and for business. There are also vast differences in the criteria being established by individual states, the U.S. government and international agencies.
In the business community, there should be much concern and preparation for evolving regulations on the use and disposal of PFAS compounds and PFAS-containing products that will affect end users
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and suppliers directly or indirectly, during industrial production or from the use of products that contain PFAS compounds. These regulations will have critical implications for manufacturers of PFAS and PFAS-containing compounds, owners and operators of facilities or properties where PFAS was released or disposed, entities that have generated, transported, or arranged for the disposal of PFAS compounds, and wastewater and waste management facilities that treat PFAS contamination.
While it may seem daunting and costly to address these looming PFAS regulations now, PFAS has become an area of focus for federal and state agencies, as well as private party litigants who are Increasingly interested in companies who only have a remote or indirect nexus to the chemicals. Across-the-board regulation will become more stringent. Air emissions have yet to be regulated federally; but, as a case in point, North Carolina recently submitted a petition to the Environmental Protection Agency (EPA) requesting the regulation of certain PFAS compounds under the Clean Air Act. If granted, EPA would be required to move forward with promulgating emission limits for PFAS.
The financial and reputational risks and costs as-
sociated with PFAS-related lawsuits and enforcement actions are numerous. Working with legal counsel, business owners should review background historic records to determine if PFAS could have been released in past stormwater discharge, air emissions, or landfill deposits in anticipation of stricter regulations and corresponding litigation moving forward.
Parties aware of possible current or historic PFAS contamination should consider preemptively developing a strategy to mitigate the risk of future enforcement actions and litigation. Entities that may be using or remediating PFAS compounds should engage counsel and environmental professionals to assess potential exposure and determine if PFAS discharges or emissions can be reduced or controlled cost-effectively. It is almost always less expensive to address a problem proactively rather than after the fact.
Smaller businesses should determine their reliance on PFAS. If PFAS are a key part of your process, what would you do if they were eliminated tomorrow? While many major corporations are proactively taking steps to create PFAS alternatives out of both business necessity and corporate citizenship, businesses of all sizes and municipalities that supply water, and the entire population will be contending with this issue for decades to come. Amongst the uncertainty surrounding PFAS, one thing is certain. The best time to act to best protect your business is now.
Allison Gabala is senior counsel in the Environmental and Energy practice at Bond, Schoeneck & King’s Newark office. She can be reached at agabala@bsk.com or (646) 253-2363.
Allison Gabala
ccording to the National Association of Corporate Directors, fewer than 25% of private companies say they have a formal succession plan in place. If you are one of these companies, then you should consider planning for leadership succession as early as possible, especially in the context of an overall estate plan.
The benefits of developing a business succession plan are significant. Doing so can help you:
• Survive an unforeseen event, such as an unexpected illness or death
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• Motivate your staff as they will know that the company is planning for the future and is committed to developing employees for future leadership positions
• Reduce expensive costs by not having to recruit qualified individuals to fill unanticipated vacancies
Cummings & Lockwood’s attorneys have extensive experience in the creation of succession planning strategies for owners of privately-held businesses, many on the cusp of a generational change. Our clients include traditional operating businesses, entrepreneurial enterprises,
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family investment partnerships and large family foundations.
Our trusts and estates and corporate attorneys can help with:
• Developing tax-efficient strategies for transferring ownership and control through family generations
• Planning for the harmonious transition of the business either during the owner’s lifetime or at death
• Assisting clients in the sale of an operating business and/or the conversion of an operating business into an investment-oriented family venture
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Founded in 1909, Cummings & Lockwood provides sophisticated legal counsel to individuals and families, family offices, closely held businesses, other commercial enterprises and charitable entities. Our core services include trusts and estates, corporate and finance, litigation and arbitration, and commercial and residential real estate.
The firm has over 200 attorneys, fiduciary accountants, paralegals and staff, as well as six offices located in Stamford, Greenwich and West Hartford, Connecticut and in Naples, Bonita Springs and Palm Beach Gardens, Florida.
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For over 100 years, Cummings & Lockwood has been building meaningful and lasting relationships with our private clients, serving as trusted advisors throughout their lifetimes and providing sophisticated legal counsel at every important stage of their lives.
We offer our clients a broad range of services, including estate planning and administration; estate,
income and gift tax planning; wealth protection planning; trust formation and management; philanthropic giving; probate and estate settlement; international estate and tax planning; executor and trustee services; business succession planning; fiduciary and probate litigation; and tax controversy and litigation.
For more information about Cummings & Lockwood, please visit our website at www. cl-law.com.
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