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04.01.2019 Legal News

What's All the PFAS About?

Per- and polyfluoroalkyl substances (PFAS) are a group of over 4,000 synthetic chemicals that have been in use world-wide since the 1940s.  They are found in a wide array of consumer and industrial products, including firefighting foam; stain and water-resistant coatings, clothing and carpet; cookware; and waxes and cleaners.  Products containing PFAS are found in almost every U.S. home and business.  According to EPA, “Due to their wide-spread use and persistence in the environment, most people of the United States have been exposed to PFAS.  There is evidence that continued exposure above specific levels to certain PFAS may lead to adverse health effects.”  These effects can occur at extremely low concentrations, in the parts per trillion (‘ppt”).  For reference purposes, 1 ppt is 1 part per 1,000,000,000,000.  It’s equivalent to six inches in the 93 million-mile journey to the sun, or about three seconds in 100,000 years.

PFAS are highly mobile in the environment, which means they can migrate easily through groundwater to public and private water supplies.  In addition, because they are resistant to heat, water and oil, they are highly resistant to natural biodegradation and very difficult to treat with most remedial technologies.

PFAS were phased out by the mid-2000s, but are only now coming to the forefront.  Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) are two of the most prevalent PFAS.  Unfortunately, they have been found in many public and private drinking water supplies around the country.  PFOA and PFOS are not yet subject to national primary drinking water regulation, but EPA issued a Drinking Water Health Advisory in 2016 for these two chemicals at a combined concentration (PFOA+PFOS) of 70 ppt.  Not content to wait, at least eight states – Vermont, Massachusetts, New Jersey, Minnesota, California, Colorado, Michigan and Washington – have adopted their own limit for drinking water, with some limits as low as 13 ppt.  At least eleven other states are in the process of adopting limits.  Litigation?  You bet.  A number of municipal governments – many in the Northeast – have sued PFAS manufacturers and owners of properties contaminated with PFAS for the costs of remediating and treating their municipal water supplies (most often treating the water using activated carbon absorption, ion exchange resins, and/or high-pressure membranes).

Significant PFOA and PFOS contamination can be found at current and former military installations where fire-fighting foam was used in training and to fight fires.  The Department of Defense is grappling with how to address these chemicals in soil and groundwater, with the Air Force and Navy taking a more proactive stance to date than the Army.

As one can imagine, the pressure on EPA to “do something” has been intense.  In an Action Plan released on February 14, 2019, EPA announced it is in process of promulgating a Maximum Contaminant Level (“MCL”) for PFOA and PFOS under the Safe Drinking Water Act and listing these chemicals as “hazardous substances” under CERCLA.  For most PFAS, there is limited or no toxicity information.  In addition, while validated EPA drinking water measurement methods are available for 18 PFAS today, including PFOA and PFOS, EPA lacks validated analytical methods for national measurements for hundreds of other PFAS.  Accordingly, the Action Plan indicates that EPA will develop more toxicity information for PFAS, develop new tools to characterize it, and evaluate cleanup approaches. 

If EPA adopts an MCL for these chemicals in drinking water, it will be the first time it has adopted a new MCL in two decades.  Of course, the key issue is what is the “safe” limit.  That’s something over which there is great debate, with limits discussed ranging from single digit ppt all the way up to 400 ppt.  If EPA lists PFOA and PFOS as CERCLA “hazardous substances,” the landscape will change considerably because governments and private parties will be able to take response action under CERCLA to address the contamination and then sue those who released the chemicals to recover the costs.  When will this happen?  Not any time soon.   Even if EPA moves quickly, there will be lawsuits challenging both actions by environmental and industry groups alike before anything becomes final.

This is a significant problem, and one that will cost huge amounts of money to address for many years to come.  Litigation is likely to be ubiquitous.  Now you know what’s all the PFAS about. 

Lifetime Health Advisories and Health Effects Support Document for PFOA and PFOS, 81 Fed. Reg. 33250 (EPA May 25, 2016).

EPA’s Per- and Polyfluoroalkyl Substances Action Plan (Feb. 14, 2019).