December 27, 2018

Fear and loathing of PFAS

Matthew Thurlow

Since the U.S. Environmental Protection Agency’s (EPA’s) release of new lifetime Health Advisory Levels for perfluorooctanesulfonic acid (PFOS) and perfluoroctanoic acid (PFOA) in 2016, there has been an explosion of interest and new regulation of these and other chemicals, known as per- and polyfluoroalkyl substances (PFAS). PFAS compounds, known for their grease-resistant and water-resistant properties, have been used in a wide variety of commercial and consumer products (including Scotchgard, GORE-TEX, firefighting foam, and Teflon). EPA has long known about the potential toxicity of some PFAS—leading to the phasing out of PFOS in the United States in 2002 and PFOA in 2015—but there was relatively little regulatory or public interest in the chemicals until recently.

In the past two years, a number of states have rushed to adopt enforceable drinking water, groundwater, and soil standards for PFAS. Interstate Technology Regulatory Council, Standards and Guidance for PFAS. Some states, including Vermont, New Jersey, and New Hampshire have gone further than EPA—proposing new requirements for sampling PFAS or enforceable standards even lower than the non-enforceable, advisory levels proposed by EPA. In May 2018, bipartisan pressure culminated in a National PFAS Summit at EPA’s headquarters. At the summit, former EPA Administrator Scott Pruitt committed to further EPA action on PFAS including evaluating national drinking water standards for PFOA and PFOS, and regulating them as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act. Administrator Pruitt also committed to evaluating the toxicity of additional PFAS chemicals, including the alternative PFAS chemicals, GenX and perfluorobutane sulfonate, and agreed to extensive public outreach efforts. United States Environmental Protection Agency, PFAS National Leadership Summit and Engagement. Over the summer, the Agency for Toxic Substances and Disease Registry (ATSDR)—an agency within the Department of Health and Human Services—announced that there may be health impacts from exposures to PFOS and PFOA at levels seven to 10 times lower than the already low standards proposed by EPA. In November, EPA completed its review of the toxicity of GenX and perfluorobutane sulfonate, finding them significantly less toxic than PFOS and PFOA. United States Environmental Protection Agency, Fact Sheet: Draft Toxicity Assessments for GenX Chemicals and PFBS.

As public pressure and litigation against manufacturers and secondary users of PFAS mount, there is a divergence in views regarding the risks that PFAS pose to public health and the environment. Some states and environmental groups have adopted a highly conservative approach to new PFAS regulation and tout evidence of significant human health impacts ranging from elevated cholesterol to reproductive harm, developmental delays, and an increased risk of certain cancers. C8 Panel Study, The Science Panel Website; World Health Organization, International Agency for Research on Cancer, IARC Monographs on the Evaluation of Cancer Risk to Humans. But other states, municipalities, and industry supporters have pushed back on some of the science used to support draconian limits on PFAS. See, e.g., Inside EPA, Industry Raises Legal Warnings Over ATSDR’s Strict Draft PFAS Findings, Aug. 28, 2018; Texas Commission on Environmental Quality, TRRP Protective Concentration Levels. Numerous health studies have shown no link between cancer and PFAS exposure, and other studies indicate that higher limits for PFAS than those being considered by EPA and most states are sufficiently protective of human health. See Australian Government, Department of Health, Summary: Expert Panel for PFAS, July 2018; New York State Department of Health, Cancer Incidence Investigation 1995-2014, Village of Hoosick Falls, New York, May 2017; New Hampshire Department of Health and Human Services, Cancer Incidence Report: Merrimack, NH, Jan. 2018; Minnesota Department of Health, Cancer Incidence in Dakota and Washington Counties. As interest has increased and litigation has accelerated—including the recent filing of a national class action against PFAS manufacturers in the U.S. District Court for the Southern District of Ohio—the emerging fight over new state and federal regulatory limits for PFAS features a familiar group of players, including federal and state environmental officials, municipalities, industry groups, environmental nonprofits, and communities impacted by drinking water contamination. Class Action Complaint, Hardwick v. 3M Company, No. 2:18-cv-1185 (S.D. Ohio Oct. 4, 2018).

Although there is disagreement regarding what enforceable standards should be set for PFAS, no one has advocated that members of the public should be exposed to contaminants at levels that may result in negative health impacts. But eliminating every last molecule of PFAS from drinking water supplies—as some environmental groups advocate—is likely not a feasible alternative. Nor is a zero tolerance standard for PFAS consistent with the mandate of municipal, state, and federal environmental regulators, who are responsible for setting drinking water risk levels for thousands of chemicals and naturally occurring substances.

While PFAS have garnered a great deal of public attention—and instilled tremendous fear within communities, who are in some cases only learning about their exposure now—it does not pose nearly the same health hazard as many other common drinking water contaminants. And while the tragic contamination of drinking water with lead in Flint, Michigan, remains an important reminder that Americans should not take safe drinking water for granted, or neglect the drinking water infrastructure that is in place, the United States should remain proud of its strong record in delivering safe and clean drinking water to the public. Whatever EPA and the states ultimately decide to do next, the final regulatory decisions for addressing PFAS in drinking water, groundwater, and soil should be based on a transparent process, public participation and debate, and the best available science and reasonable risk assessments.

Matthew Thurlow

Matthew Thurlow is partner at BakerHostetler in Washington, D.C., where he focuses his practice on environmental and toxic tort litigation. The views expressed in the article are those of the author and not necessarily those of BakerHostetler or its clients.