Across the oil and gas industry, organizations routinely navigate periods of change. Fire protection systems are upgraded. Refineries, terminals, pipelines, and other facilities are modernized, repurposed, or sold to other oil and gas companies. Records systems are consolidated. Warehouses are cleaned out. Experienced personnel retire and are replaced by new generations of operators, engineers, and environmental professionals. During these transitions, records, product information, samples, photographs, supplier documentation, incident records, and institutional knowledge are often discarded because they no longer appear to have operational value.
Most of the time, that information is never needed again. Occasionally, however, years later, an organization must answer a question that depends on information that no longer exists. A regulator may ask what products were historically used at a facility. An environmental investigation may require reconstruction of historical operations or release incidents. An insurance claim, cost-recovery effort, or liability-allocation analysis may depend upon reconstructing historical product use and management. When records, samples, and firsthand knowledge are no longer available, organizations may face higher investigation costs, greater uncertainty regarding potential liabilities, diminished ability to allocate responsibility to other parties, and fewer options to support insurance, cost recovery, or defense strategies.
The ongoing aqueous film-forming foam (AFFF) multidistrict litigation (MDL) provides a useful example. While often viewed as litigation about firefighting foam, the proceedings increasingly involve questions of product identification, attribution, and the evidence required to connect a specific claim related to per- and polyfluoroalkyl substances (PFAS) to a particular product, formulation, supplier, manufacturer, or upstream chemical producer. In many respects, the litigation demonstrates a broader reality: Establishing that PFAS contamination exists may be only the beginning of the inquiry. The more difficult question may be determining which parties are connected to a claim and what evidence is sufficient to establish that connection. The answer may ultimately influence whether remediation costs remain with a facility owner or operator, can be allocated among multiple parties, or can be partially recovered from upstream manufacturers, suppliers, or other potentially responsible parties.
Historical Information That May Become Important LaterHistorical information that appears to have little operational value today may later become important for attribution, liability allocation, insurance claims, cost-recovery efforts, environmental forensics, disposal decisions, or other business and legal matters. The following categories of information may become difficult or impossible to reconstruct once an AFFF-to-F3 transition is complete. Product and Supply History
Storage, Use, Release, and Disposal History
Supporting Documentation
Ownership and Operational History
Why Might This Information Matter Later?
The AFFF-to-F3 transition creates a unique opportunity to preserve historical information while it is still readily available. Information that appears to have little operational value today may later become important when organizations need to reconstruct historical product use, supplier relationships, release circumstances, operational practices, or ownership histories. Once that information is lost, recreating it may be difficult, expensive, or impossible. |
This distinction has immediate relevance for oil and gas companies currently transitioning from PFAS-containing AFFF to fluorine-free foam (F3). During these conversions, organizations may inventory legacy foam stocks, remove concentrates, clean storage systems, replace equipment, dispose of obsolete materials, and reorganize historical records. At the same time, they often have unique access to procurement records, product literature, supplier information, labels, photographs, maintenance records, training records, retained samples, and personnel with firsthand knowledge of historical foam use and releases, including historical storage and disposal practices. Information that no longer appears operationally useful may, in fact, represent part of the historical record needed to answer future questions.
Viewed through that lens, the AFFF-to-F3 transition is more than an operational conversion project. It is also a preservation opportunity. Even where future PFAS regulatory, litigation, or remediation outcomes remain uncertain, organizations can recognize the potential value of information that is readily available today but may be difficult or impossible to reconstruct later. Understanding why that opportunity matters requires a closer look at the questions emerging from the AFFF litigation and what they may reveal about the future value of historical records, product information, and institutional knowledge.
Lessons Emerging From the AFFF MDL
Historically, many PFAS-related claims focused on establishing the connection between widespread environmental contamination and the manufacture, distribution, and use of PFAS. Large quantities of PFAS entered the environment through decades of manufacturing activity and the widespread use of PFAS-containing products and materials. Contamination became evident in drinking water supplies, groundwater, surface water, soils, biosolids, landfills, wastewater residuals, and other environmental media. In many cases, the existence of contamination, the resulting damages, and the general relationship among PFAS production, PFAS-containing products, and environmental impacts were not the primary points of dispute.
Several high-profile settlements emerged from that broader phase of PFAS litigation, particularly claims involving drinking water impacts. The current phase of the AFFF MDL is different. For representative sites and nonsettling parties, the court is increasingly evaluating what evidence is required to connect a particular PFAS-related claim to a particular product, formulation, supplier, manufacturer, or upstream chemical producer. In effect, the litigation is testing the evidentiary threshold necessary to establish product identification and attribution.
The significance of these questions extends beyond firefighting foam. The standards ultimately applied by the court may influence how future PFAS claims are evaluated in situations where parties seek to connect contamination, damages, and resulting costs to specific upstream parties. While the facts of future cases will differ, the underlying attribution questions are likely to arise wherever responsibility for PFAS-related costs is being allocated among multiple parties.
Once contamination, damages, and a plausible release mechanism have been established, a different set of questions can emerge:
- Which product was involved?
- Which formulation was used?
- Who supplied it?
- When was it used, and how much was used?
- Did the formulation change over time?
- Can a particular claim be connected to a particular manufacturer, supplier, or other upstream party?
The need to establish attribution and allocate responsibility among multiple parties helps explain why elements of the historical record often acquire value long after their original operational purpose has ended. Much of the information created during routine operations exists to support immediate business needs rather than future attribution, insurance, or cost-recovery questions. Yet years later, that same information may become some of the most direct evidence available to reconstruct the relevant product and operational history and determine how responsibility should be allocated among multiple parties.
Viewed in this context, the emerging lessons from the AFFF MDL are not limited to firefighting foam or whether remediation will ultimately be required. The litigation tests what information may be required to establish the connections necessary to support future PFAS-related claims. More broadly, it demonstrates how questions involving attribution, liability allocation, insurance claims, cost recovery, and other business or legal matters may ultimately depend upon information that was never originally retained for those purposes. Understanding that relationship helps explain why the ongoing transition from AFFF to F3 may represent a unique information-preservation opportunity.
Why the AFFF-to-F3 Transition Is Different
Most operational changes occur without much consideration for the historical information associated with the products being removed. The transition from AFFF to F3 is different because it creates a limited opportunity to evaluate and preserve information associated with legacy materials before that information becomes more difficult to reconstruct. For many oil and gas organizations, AFFF represents one of the most visible and well-documented historical PFAS-containing products used within operations. During conversion, much of the historical record needed to reconstruct decades of foam use may still be available for review and preservation before it becomes significantly more difficult to locate, interpret, or reconstruct.
The significance of this information depends in part on the questions that may need to be answered in the future. Establishing that AFFF was historically used at a facility may be sufficient for some purposes. Other situations may require a greater level of detail. As attribution questions become more specific, organizations may need sufficient information to identify the relevant product and connect it to a period of use and potential release circumstance. The completeness of the historical record retained during the transition may ultimately influence the level of attribution that can be achieved later, as well as an organization’s ability to allocate costs among multiple parties or pursue potential cost-recovery opportunities.
Formulation history illustrates why these details can matter. Organizations may retain the same product specification, approved supplier, or performance requirement for years while the underlying chemistry changes. AFFF provides a familiar example. Legacy formulations often contained chemistries associated with perfluorooctane sulfonate (PFOS) or perfluorooctanoic acid (PFOA), while later products transitioned toward fluorotelomer-based C6 formulations and different fluorosurfactant packages. Products that appeared similar from an operational perspective, therefore, may have had materially different chemical compositions, manufacturing histories, and supplier relationships.
As a result, the relevant question may not simply be whether AFFF was used. Future questions may require an organization to reconstruct the formulation in use at a particular time and the PFAS-related constituents associated with it.
Could Future Attribution Questions Extend Beyond AFFF?
To create the types of questions now being explored in the AFFF MDL, PFAS generally must be associated with a plausible pathway connecting historical product use to environmental media, waste streams, treatment systems, residuals-management activities, or other future obligations. In oil and gas operations, those pathways are most likely to involve PFAS-containing products used in liquid form.
In addition to AFFF, examples could include process chemicals, water-treatment additives, production chemicals, or other materials intentionally introduced into operational systems where they may enter wastewater streams, treatment processes, residuals-management systems, produced-water management programs, or other environmental pathways. Unlike products incorporated into more fixed or less mobile applications, these materials are intentionally introduced into systems that can transport, concentrate, treat, manage, or dispose of PFAS-containing constituents. If PFAS is later identified within those systems, organizations may need to determine which products contributed to their presence and how their use and composition changed over time.
The purpose of raising these examples is not to suggest that any particular activity will necessarily result in future liabilities, remediation requirements, or other obligations. Rather, these examples illustrate how historical product use can become relevant when organizations need to understand how PFAS entered operational systems, environmental media, waste streams, treatment processes, residuals-management activities, or disposal pathways.
This challenge can become even more significant when ownership histories become involved. The oil and gas industry has experienced substantial merger, acquisition, divestiture, and portfolio-repositioning activity across upstream, midstream, and downstream sectors in recent years. As assets change ownership, historical information may become fragmented across multiple operators, business units, facilities, and record systems. If future allocation, insurance, cost-recovery, disposal, or other PFAS-related questions arise, organizations may need to determine when relevant materials were used and under whose ownership they were managed. In many cases, the most difficult part of answering those questions may not be identifying a potential PFAS source but rather locating the historical record needed to reconstruct the operational and ownership history associated with it. Organizations that preserve the relevant historical record during operational and ownership transitions retain more options when future questions depend upon reconstructing historical product use, ownership histories, and supplier relationships.
Conclusion
The lessons emerging from the AFFF MDL are not limited to determining whether PFAS contamination exists or whether remediation will ultimately be required. Increasingly, the litigation illustrates how historical records, supplier information, formulation history, and other elements of the historical record may influence future attribution, allocation, insurance, and cost-recovery questions. As those questions continue to evolve, the historical record needed to answer them will likely become increasingly important.
For many oil and gas organizations, the ongoing transition from AFFF to F3 represents a timely opportunity to preserve that historical record while it is still available. Whether future questions involve regulatory obligations, remediation requirements, disposal activities, insurance claims, liability allocation, or cost-recovery opportunities, the ability to answer them may ultimately depend on information that exists today but may not exist tomorrow. The value of the historical record is often not fully appreciated until a question requires an answer that can no longer be reconstructed from memory alone.
Matthew Burns is a technical fellow and senior vice president with WSP, where he serves as US national director of the firm’s PFAS practice and global lead of its Emerging Contaminants Practice Area Network. An environmental engineer with more than 30 years of experience, he specializes in environmental biogeochemistry and in-situ remediation, helping clients address complex contamination, liability, and risk-management challenges involving PFAS, chlorinated solvents, petroleum hydrocarbons, metals, and other contaminants. Burns also advises organizations on PFAS risk and readiness strategies, including product stewardship, supply-chain assessments, product transitions, evidence preservation, and preparation for evolving regulatory and liability frameworks. He holds an MS degree in civil and environmental engineering from the University of Maryland and a BS degree in environmental science from the University of Massachusetts Amherst.
Robert (Bob) Cipolletti is a senior vice president and principal geologist at WSP, where he serves as technical director and subject-matter expert and is a member of WSP’s Emerging Contaminants Leadership Team. He has 40 years of experience in the environmental field and holds an MS degree in geological sciences and a BAS degree in geology and Earth science from Rutgers University. Cipolletti has expertise in characterization, remediation, and construction soil-management projects. For the past 8 years, he has focused his attention on addressing PFAS issues at airports and has extensive experience in construction materials management and environmental remediation, including work with PFAS-affected media.
Usha Vedagiri is a senior vice president and principal risk assessor with WSP Earth and Environment in California, with a focus on emerging contaminants, including PFAS, microplastics, and petroleum hydrocarbon metabolites. She holds a PhD degree in environmental science from Rutgers University.