Source: https://www.lexology.com, August 2, 2019
By: Thomas S. Lee, Ivan London and John Kindschuh, Bryan Cave Leighton Paisner LLP
Per- and polyfluorinated chemicals (“PFAS”) make up a family of chemicals that are the subject of increasing regulatory attention across a wide range of industries. After providing a brief background, this Client Alert focuses on their roles in the Upstream Oil & Gas industry.
PFAS have been reported in a variety of consumer products and industrial applications including: textile and apparel items, carpet cleaners, ski wax, non-stick products (e.g., Teflon), stain resistant coatings, polishes, paints, cleaning products, pizza boxes, microwave popcorn bags, take-out containers, and cosmetics. The chemicals form very stable compounds, and it is now thought that these materials persist in the environment for a long time. They also tend to stay in the water column and travel well through surface and groundwater. Some studies have shown that PFAS accumulate in humans and animals, including fish. The EPA and several States are in the process of regulating (or, at least, thinking about regulating) PFAS levels in drinking water, groundwater, surface water, and consumer products. Given the widespread detection of PFAS throughout different industries, proactive compliance efforts appear to be the best way to mitigate future risk.
Although the Upstream Oil & Gas industry is not commonly identified as a user of PFAS, there are reports indicating the use of PFAS in certain processes. The following are some high-level examples of the uses of PFAS in the Upstream Oil & Gas industry, and ways in which members of the industry can limit their risks.
Upstream Oil & Gas PFAS Uses
The following uses of PFAS have been identified in the Upstream Oil & Gas Industry:

1. Aqueous Film Forming Foam (“AFFF”) fire suppression spray;
2. Hydraulic oils used to prevent things such as corrosion; and
3. Surfactants (compounds that lower the surface tension between two liquids) in oil reservoirs used to increase production.

AFFF Fire Suppression 
The link between AFFF and perfluorooctane sulfonate (aka, “PFOS” which is one of the PFAS), is well documented. There are reports of groundwater and surface water contamination near Air Force and other Department of Defense facilities that have used AFFF for live fire-suppression training as well as actual fire events. And several lawsuits have been filed against the Department of Defense related to its use of AFFF, such as the recent case on behalf of several parties near the Peterson Air Force Base in Colorado Springs. The use of AFFF is required for most petroleum-product fires because it spreads over the surface of the petroleum liquid, forms a barrier on the top of the petroleum product which smothers the fire, provides a barrier between the petroleum and the ignition source, and can prevent re-ignition. AFFF can release PFAS into the environment at many stages: during testing, storage, actual use, and training.
The Upstream Oil & Gas industry may face legacy contamination concerns at locations where fire-suppression training was conducted using the actual spraying of AFFF, or at facilities where AFFF was used to suppress an actual fire.
To the extent that Upstream Oil & Gas facilities rely on AFFF for their fire suppression, they should consider switching to alternate fire-suppression products such as Fluorine Free Foams (“FFFs”) after reviewing whether those products meet their regulatory requirements.
Hydraulic Fluids 
In some instances, PFAS have been used in hydraulic fluids to prevent corrosion.¹ The inadvertent release of these fluids can cause PFAS contamination of the soil and groundwater.
To the extent that Upstream Oil & Gas facilities rely on hydraulic equipment, they should consult with their suppliers to determine whether the hydraulic fluid used in the equipment contains PFAS, and re-consider whether they have appropriate equipment and measures in place to prevent its release.
Surfactants
Surfactants have been used for chemical enhanced oil recovery (“EOR”) since the early 1900s.² Surfactant flooding boosts oil production by lowering interfacial tension and increasing oil mobility, thus allowing better displacement of the oil by injected water. Surfactant EOR improves the wettability of porous rocks allowing water to flow through them faster, displacing more oil.
The EPA has indicated that PFAS may have historically been used to manufacture surfactants used for EOR. If that is true, then there could be legacy groundwater and soil impacts from the use of surfactants for EOR. Industry members who use (or used) surfactants for EOR should also consider consulting with their suppliers to determine whether the surfactants that they are currently using contain PFAS.
Conclusion 
The Upstream Oil & Gas industry has not been a focus of PFAS regulation to date. Significantly, the historic (and potentially current) uses of substances that contain PFAS in Upstream Oil & Gas operations suggest that there may be some PFAS impacts that regulators and litigants will scrutinize closely. As a result, industry members should review their current practices and potential for legacy contamination issues.