By Ashley Campbell & Seth Mansergh
The EPA recently announced new health advisories for the two most commonly found forms of PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), to 0.004 parts per trillion (ppt) and 0.02 ppt, respectively.
Reductions in these levels had been expected since October 2021, when the U.S. EPA, as part of its announced plans for a PFAS strategic roadmap, indicated that the health advisory of 70 ppt for PFOA and PFOS—first set in 2016—would be reduced, potentially by thousands of times. So, while it’s not entirely surprising that the new advisories cut the safe level of PFOA by more than 17,000 times, this news has prompted several questions from water suppliers and their customers.
Why the big change?
The updated advisory levels are based on new science recognizing a link between some negative health effects and exposure to PFOA or PFOS in water at near-zero concentrations. New EPA studies indicated, among other concerns, that children with levels of PFAS in their blood previously considered low were not responding to common childhood vaccinations, in particular those for diphtheria and tetanus.
Still, health concerns over PFAS exposure are by no means new. In 2006, to take just one example, an independent science panel, which had spent six years studying the effects of PFOA, linked the chemical to kidney cancer, testicular cancer, thyroid disease, high cholesterol, ulcerative colitis and preeclampsia. Going back even further, studies in the 1970s by DuPont, who used these chemicals in a variety of consumer and industrial products, indicated that PFOA was bioaccumulating in the blood of its factory workers, meaning their bodies’ tissue was absorbing the substance faster than it can be eliminated—a significant risk factor for adverse health effects like cancer and other chronic illnesses.
What’s a “health advisory?”
A health advisory is not an enforceable regulation, like a maximum contaminant level (MCL). The purpose of a health advisory is to provide scientific information and guidance to states and other authorities (like tribal governments) to use in setting their own MCLs. But states are not required by law to rely on the EPA’s health advisories as part of that process. Before the EPA issued its most recent health advisories, in fact, 16 states had already enacted their own MCLs at different levels for PFOA, PFOS, and certain other PFAS compounds, based on each state’s own review of toxicology studies for a variety of associated health risks—and, in general, these MCLs were lower than the EPA health advisory of 70 ppt for PFOA and PFOS which was then in effect.
How states and other authorities will respond to the EPA’s new health advisories in setting their own MCLs remains to be seen. It should also be noted that the EPA itself has announced its plan to issue proposed national MCLSs for PFOA and PFOS by the end of 2022, and to finalize those MCLs by the end of 2023. These national MCLs would apply everywhere and take precedence over higher MCLs that have been set by individual states.
While some suppliers may have existing treatment facilities capable of removing some PFAS, the vast majority do not have the technology required to remove PFAS from drinking water at the low levels envisioned by the new health advisories.
Another important function of the EPA’s health advisories is to provide guidance to the public on how to minimize exposure to PFAS, not only in drinking water but through the use of everyday products (PFAS were used in a wide range of consumer goods, including non-stick cookware, food packaging, water-resistant clothing, and cosmetics). Water suppliers are likely to encounter questions from their customers and other members of the public about the safety of their drinking water in light of the new health advisories.
What is the EPA likely to do next?
A recent White House briefing indicated that the EPA will issue a proposed rule to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). If this happens, water suppliers are likely to face increased costs for the treatment of PFAS-contaminated water, since PFAS-contaminated treatment media will need to be dealt with according to hazardous waste protocols. Water suppliers who provide recycled water for irrigation, or who operate wastewater treatment facilities, will also face serious questions about how to continue these operations in a cost-effective manner, and disposal will become exponentially higher.
Is there any good news?
In addition to new regulatory action, the federal government has made some funding available to communities affected by PFAS, including President Joe Biden’s Bipartisan Infrastructure Law, which provides $10 billion in funding to specifically address PFAS and other emerging contaminants in water. However, some of that funding is available only to communities with specific attributes; for example, $5 billion is earmarked for small communities and those that were historically underserved.
What about legal action?
While some suppliers may have existing treatment facilities capable of removing some PFAS (for example, granular activated carbon systems for removing VOCs), the vast majority do not have the technology required to remove PFAS from drinking water at the low levels envisioned by the new health advisories. Designing, installing, and operating the technology to do so is likely to be expensive, running into the millions of dollars (or more) for each contaminated well.
Fortunately, the law holds manufacturers whose defective products cause environmental contamination responsible for the cleanup costs. Nearly all PFOA and PFOS sold in the United States originated with just two manufacturers, 3M and DuPont, who (as referenced above) were aware of the environmental and human health risks of these products for decades. As a result, many municipalities and other utilities have chosen to file lawsuits and hold these polluters accountable for the costs of installing and operating PFAS treatment facilities, potentially for many decades to come as the chemicals continue to persist in water supplies.
In fact, many water suppliers have joined a multidistrict litigation (MDL) consisting of more than 2,500 cases pending from across the country alleging PFOA and PFOS exposure from decades of the use of firefighting foam that contained these and other PFAS chemicals. Although the MDL includes claims by other kinds of plaintiffs, like firefighters exposed during their work, water providers have been selected as what are known as the “bellwether cases” in the MDL, with the result that a group of their cases will be the first to go to trial, as early as March 2023. The results of these trials are likely to encourage efforts among the many water system plaintiffs and the defendants to resolve all of their claims by settlement. In this posture, filing suit in the multidistrict litigation may be one of the faster routes for a water system to recover its costs of treating PFAS contamination, especially if aqueous film forming foam is the likely source.
Although the long-term impacts of the new EPA health advisories for PFAS compounds are uncertain at this point, they are almost certain to have impacts throughout the water industry, which must rally together to find solutions to remove these contaminants—including holding the polluters responsible—and provide the public with safe drinking water.
AUTHORS
Ashley Campbell is an attorney at SL Environmental Law Group. She focuses exclusively on representing public entities in litigation concerning environmental contamination of public resources, such as water, land, natural resources, watersheds, basins and airports. She is representing more than 50 plaintiffs on MDL-2873.
Seth Mansergh is an attorney for SL Environmental Law Group. He focuses his practice on complex environmental litigation and has substantial experience with MTBE cases and environmental contamination in water systems and school districts.
