Toxic chemicals are now in our bloodstream — will EPA finally set limits?

Poly- and perfluoroalkyl substances may not flow trippingly off the tongue, but countless Americans have been exposed to them and have some amount of them in their blood serum.

The broad class of these substances, called PFAS, refers to about 3,000 compounds. Once considered modern miracles, they are manmade chemicals that include perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).

{mosads}Starting in the 1940’s, scientists at the Manhattan Project seeking to separate uranium created carbine-fluorine bonds that were almost impossible to break, resulting in PFAS. Chemical engineers found that PFAS compounds repelled water, grease and stains, created non-stick surfaces, reduced friction and resisted high temperatures. PFOA was used for decades to stainproof fabric and carpet, waterproof clothing, grease-proof food packaging, and make non-stick cookware. PFOS was used in fire-fighting foam, largely on military bases. 

Some laboratory studies link PFAS to health effects that include higher cholesterol levels, low birth weights, effects on immune systems, thyroid hormone disruption and cancer. EPA has found that “there is evidence that continued exposure above specific levels to certain PFAS may lead to adverse health effects.”.

On February 14, EPA released a PFAS Action Plan, calling it “the most comprehensive, cross-agency action plan for a chemical of concern ever undertaken by the Agency.” It is made up of 23 actions expected to be completed over the next two years. The actions include:

• considering the process for establishing nationwide maximum contaminant levels for PFOA and PFOS under the Safe Drinking Water Act
• listing them as hazardous substances under CERCLA and issuing interim groundwater cleanup recommendations
• using existing enforcement to address PFAS exposure in the environment
• considering listing PFAS in EPA’s Toxic Release Inventory; researching new analytical methods to detect more PFAS chemicals
• creating a PFAS risk communication toolbox

PFAS have made their way over time into soil, surface water, sediments and groundwater, both directly and through air emissions. They are mobile and persistent — they resist breakdown.  PFAS also bioaccumulate and can be found in fish and in human blood serum, remaining in the body years after exposure ends. Infants are disproportionately exposed through both drinking water and breast milk. PFAS can be detected at a part per trillion level, so if sought they are usually found.

Litigation around PFAS began in 1999, after an Ohio farm family sued when their cattle died off as result of exposure to unidentified chemicals in a manufacturer’s landfill. The chemical was identified as PFOA. In 2001, a class action was brought on behalf of about 70,000 Ohio and west Virginia residents who alleged exposure to PFOA-contaminated drinking water. That suit was settled in 2005 for $343 million and created a science panel for the class members to investigate whether their alleged diseases are linked to PFOA exposure. 

Subsequent consolidated litigation resulted in a settlement in 2017 by two manufacturers for $617 million. In 2010, Minnesota sued a manufacturer alleging disposal of PFOA containing wastes had leached into the Mississippi River resulting in drinking water contamination for 125,000 residents.  The case was settled on the eve of trial for $890 million, the largest PFAS settlement to date in the U.S. In 2018, the state of Ohio filed suit against two manufacturers alleging widespread PFOA contamination of Ohio’s natural resources, seeking investigation and remediation costs, natural resource damages, and economic and punitive damages. Numerous cases have also been filed against manufacturers of PFAS used in fire-fighting foam; 75 have been consolidated.

Beginning in 2006, many U.S. manufacturers, including 3M and DuPont, voluntarily agreed to phase out PFAS compounds over time after the nearly ubiquitous PFAS were widely detected in human blood serum. Replacement of PFOA and PFOS with shorter chemical chains, some known as GenX, were introduced as an alternative and are still in use in limited applications.

Several states have been studying PFAS for some time and have urged the federal government to set nationwide acceptable concentrations of PFAS in soil, surface water, sediments, and groundwater. In the absence of federal action, at least eight states have adopted or proposed regulations, including Alaska, California, Colorado, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina and Vermont. More are considering proposals. This is creating a patchwork in approach and levels that vary state by state, creating uncertainty.

{mossecondads}The issue of whether and how PFAS will be regulated is already complicating environmental risk negotiations and insurance considerations in transactions where PFAS is present in soil or groundwater. All the state proposals and policies set standards stricter than EPA’s current health advisory of 70 parts per trillion for PFOA and PFOS. At least seven states — including Connecticut, Kentucky, Michigan, Minnesota, New York, Virginia, and Washington — also have taken steps to prohibit PFAS in fire-fighting foam.

It is unclear what will result from EPA’s PFAS Action Plan or on what timeline. Will EPA take the lead and address PFAs at the federal level? Or will cooperative federalism work here to leave the states to develop regulations and enforce standards state-by-state?

Even if EPA determines to set nationwide maximum contaminant levels under the Safe Drinking Water Act for PFOA and PFOS, that regulatory process is likely to take years. But the PFAS Action Plan does not say that EPA is going forward to set levels. The plan states that EPA’s next step in evaluating “the need for a maximum contamination level” will be to propose a “regulatory determination” that “provides the opportunity for the public to contribute to the information that EPA will consider relating to the regulation of PFAS in drinking water.”

This means that EPA will publish a regulatory notice, collect public comments, and decide then whether to regulate drinking water for PFOA or PFOS. EPA must consider and weigh three criteria in deciding whether it should start a formal rulemaking process to regulate a particular contaminant: whether PFOA and PFOS have an adverse effect on the health of persons; whether they occur or have a chance to occur in public water systems often enough and at levels of public health concern; and whether regulation of them presents a meaningful opportunity for health risk reductions for persons served by public water systems. Given that EPA has not acted to date on the data available, it is not clear what the answers to these questions will be.

Kathy Robb is a partner practicing energy and environmental law at Sive, Paget & Riesel in New York City. This opinion represents her views and not necessarily those of the firm or clients.