CONFERENCE RECAPS
Kwan acknowledged the reporting regime may catch some by surprise. “I don’t feel like they did a very good job telling people that there’s this reporting requirement that starts in October,” she said. “I had to go figure this out and I work in the PFAS space.” For landlord ports, she advised education and outreach to tenants. “I think that would be the big thing — out- reach and education and making sure they’re aware that this October deadline is pretty imminent.” Exposure pathways and public concern Audience questions revealed deep concern about exposure and remediation. Kwan explained that ingestion is the pri- mary exposure pathway, though some studies suggest der- mal absorption is possible. Firefighters, in particular, have faced significant exposure through aqueous film-forming foam (AFFF). One attendee described filling containers with foam and even engaging in “foam fights” as a rookie firefighter. Kwan acknowledged that such historical practices have fueled major litigation. Consumer awareness has also grown. Asked which prod- ucts pose the greatest concern, she cited processed food packaging and possibly dental floss, noting that PFAS are often used to create grease-resistant or glide properties. Questions also focused on cleanup standards, especially where states like New Jersey acted before federal standards were finalized. Kwan’s understanding is that sites will ultim- ately have to meet EPA standards, even if states adopted ear- lier thresholds. Stormwater sampling requirements are emerging in some states. California, she noted, has issued freshwater guidance that is “much, much higher than the current EPA drink- ing water standards.” She expressed cautious optimism that regulators understand “you can’t control what goes in the stormwater” and that “treating stormwater is going to be a nightmare”. Key takeaways for ports As health impacts become clearer, “the regulation is becoming more nuanced,” Kwan concluded. Internationally, class-based regulation is emerging. In the United States, however, the approach remains chemical-by-chemical, lay- ered across multiple statutes. For ports, the implications are significant: potential lia- bility under Superfund, reporting obligations under TSCA, evolving stormwater standards, and the practical challenge of managing a contaminant that is both ubiquitous and persistent. PFAS may be invisible, but as Kwan’s presentation made clear, they are no longer ignorable.
Canada has proposed adding a broad class of PFAS (excluding fluoropolymers) to its national environmental protection law—another signal that class-based regulation may be gaining ground internationally. The U.S. legal framework In the United States, PFAS regulation is more fragmented and largely driven by the EPA. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, the EPA in 2024 designated PFOA and PFOS as hazardous substances. This designation potentially reopens previously closed sites for additional cleanup if PFAS are present. “Under CERCLA, citizens are able to sue,” Kwan empha- sized, highlighting the broad liability exposure. Responsible parties can include current and former owners, operators, generators, arrangers, and transporters. This has implications for ports, especially regarding stormwater. “Transporter doesn’t necessarily mean some- one who’s actively moving the compound,” she explained. If PFAS are conveyed through stormwater systems to a con- taminated site, ports could theoretically face liability. The EPA has indicated it will not pursue passive receivers — such as stormwater agencies — in federal enforcement actions. However, Kwan warned, “This does not prevent cit- izen suits from adding those passive receivers back in.” Under the Resource Conservation and Recovery Act (RCRA), nine PFAS compounds are addressed, though not identically to CERCLA’s list. The Toxic Substances Control Act (TSCA) imposes reporting, recordkeeping, and testing requirements, including a rule that manufacturers and importers must report PFAS-related data beginning in October 2026. APP President Conchita Taitano presents a speaker gift to Anya Kwan (Best Best & Krieger LLP).
42 — PACIFIC PORTS — March 2026
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