March 02, 2020

PFAS: The newest chemical du jour

Steven M. Siros

For those of us who remember the movie A Civil Action, John Travolta’s portrayal of plaintiff’s counsel Jan Schlictmann introduced the public to the potential health risks posed by trichloroethylene. Similarly, Julia Roberts’s portrayal of Erin Brockovich in the movie of the same name does the same for hexavalent chromium. The recently released Dark Waters seeks to do what these earlier movies did for a class of chemicals known as per- and polyfluoroalkyl substances (PFAS).

PFAS overview

The term PFAS refers to per- and polyfluoroalkyl substances, which include over 5,000 different compounds that have been manufactured and used in a variety of industries since the 1930s. Beginning in the 1950s, PFAS was commonly used in various consumer and industrial products, including fast food packaging, stain resistant sprays, wire insulation, carpet, paper, paints, and in metal plating and finishing operations.

In the mid-1960s, the U.S. Navy developed and began to use a fire-fighting compound known as aqueous film forming foam (AFFF) to extinguish fires on vessels. These AFFF compounds contained perfluorooctane sulfonic acid (PFOS) and perfluourooctanic acid (PFOA), which allowed for the rapid extinguishment of fuel-fed fires. AFFF began to be widely used at both commercial and military airports in the 1970s.

PFOS and PFOA are long-chain PFAS compounds with eight or more carbon atoms. Due to their strong carbon-fluorine bonds, long-chain PFAS compounds are persistent in the environment, with half-lives of over 41 years. They have the potential to bioaccumulate, are water-soluble, and migrate readily from soil to groundwater. Due to their widespread use and persistent nature, PFAS compounds are fairly ubiquitous, and the U.S. Environmental Protection Agency (EPA) reports that most people in the United States have measurable concentrations of PFAS in their blood.

Since 2006, the United States has worked to phase out the production and use of long-chain PFAS in favor of shorter-chain replacements. By 2015, the manufacture of long-chain PFOA- and PFOS-related products was fully phased out in the United States. However, even the shorter-chain PFAS compounds may pose adverse risks to human health and the environment.

The main identified exposure pathway is through drinking impacted water and/or eating fish or other foods containing PFAS compounds. According to the U.S. Department of Health and Human Service’s Agency for Toxic Substances and Disease Registry (ATSDR), various publications have reported that exposure to PFOA and PFOS may cause reproductive and developmental effects in laboratory animals, and EPA has noted limited findings in some epidemiology studies suggesting potential adverse effects on infant birth weights and immune systems, as well as cancer and thyroid disruption. However, further assessment and evaluation of these health impacts is ongoing.

Regulatory status of PFAS

The regulatory status of PFAS in the United States is rapidly changing. Although EPA has yet to set a maximum contaminant level (MCL) under the Safe Drinking Water Act (SDWA), in 2016 EPA revised its health advisory levels for both PFOA and PFOS to a combined 0.07 micrograms per liter (µg/L) (chronic lifetime exposure), which translates to 70 parts per trillion (ppt) in drinking water. Although compliance with these health advisory levels is not mandatory, they often set a ceiling for states and drinking water suppliers.

ATSDR recently suggested that EPA’s advisory levels may not be stringent enough, releasing draft risk values in 2018 that are significantly more conservative. They translate to a health advisory level of approximately 11 ppt (PFOA) and 7 ppt (PFOS) in drinking water.

In February 2019, in response to increasing pressure from the states and Congress, EPA issued a PFAS action plan. As part of its plan, EPA advised that it would proceed to develop a MCL for PFOA and PFOS. In December 2019, EPA sent proposed regulatory determinations for these compounds to the Office of Management and Budget; EPA will then make these determinations available for public review and comment.

In the meantime, states continue to move ahead with their own PFAS regulations. Although many have adopted EPA’s 70 ppt health advisory level, others have taken a more aggressive position. At the time of writing, at least 26 states regulate PFAS in some manner, with states such as California setting limits as low as 5 ppt, which is very close to the current laboratory detection levels.

Litigation

As regulatory standards continue to evolve, PFAS lawsuits continue to proliferate. Most lawsuits have been brought against PFAS manufacturers, although AFFF manufacturers have also been targeted. In Ohio, a class-action complaint was filed that seeks to certify a class consisting of anyone with detectible concentrations of PFAS in their blood and for relief seeks medical monitoring and further assessment of the health effects of PFAS. See Hardwick v. 3M Co., No. 2:18-cv-1185 (S.D. Ohio Oct. 4, 2018). That lawsuit has already survived a motion to dismiss. In addition, the U.S. District Court for the District of South Carolina reports there are more than 200 lawsuits pending against PFAS manufacturers in a multi-district litigation in South Carolina federal court, and additional lawsuits are being filed almost daily.

Conclusion

As science works to catch up to the hype surrounding PFAS, the regulated community continues to assess how best to mitigate the risks posed by these PFAS compounds. The scope of potential affected entities is broad, and includes manufacturers, property owners, public utilities (both public water and wastewater systems), and landfill operators.

For example, in real property transactions, buyers are likely to either want data evidencing the absence of PFAS impacts or strongly worded indemnity protections from future liabilities. Sellers, on the other hand, cannot simply reference historical Phase I or Phase II assessments to rule out PFAS impacts since those assessments are unlikely to have evaluated these emerging contaminants.

Another example involves site cleanups. To the extent that PFAS was not a contaminant of concern during the site investigation and remedy selection phase, it could very well be the case that PFAS-impacted soils and/or groundwater have been released back into the environment.

These examples are just the tip of the potential PFAS iceberg. Hoping that this “forever” chemical goes away is unlikely to be a successful long-term strategy. Instead, developing and implementing a proactive and strategic plan to assess and, if necessary, mitigate these risks is critical.

Steven M. Siros

Steven Siros is a partner at Jenner & Block in Chicago, where he chairs the firm’s Environmental Litigation Practice and co-chairs its Environmental Workplace Health and Safety Practice.