PFAS and Emerging Contaminants

WHAT ARE PFAS? | THE EFFECTS OF PFAS | PFAS REGULATION

Kelley Drye represents numerous states, municipalities, and water districts, as well as private sector clients, in more than 20 state and federal litigations throughout the country involving environmental contamination by PFAS. This includes numerous claims related to the use of firefighting foam – aqueous film-forming foam (AFFF) – and other products that contain PFAS compounds.

Thousands of cases from across the nation involving AFFF claims, including cases brought by Kelley Drye’s clients, have been consolidated in a multi-district litigation in the U.S. District Court for the District of South Carolina (AFFF MDL), where Kelley Drye attorneys have been appointed to numerous positions on the Plaintiffs’ Executive Committee that leads the AFFF MDL, including serving on the Plaintiffs Executive Committee, chairing the States/Sovereigns Committee, co-chairing the Property Damage Committee, and serving on the Discovery Committee.

Kelley Drye attorneys bring decades of unmatched experience in complex environmental contamination and natural resource damages matters, including on behalf of states and private businesses, and are applying that experience to PFAS regulation and litigation. In addition to litigation services, Kelley Drye counsels clients with internal investigations into PFAS risks and liability, advises on how to mitigate those risks, and represents them in actions to recover costs they incur to address PFAS contamination.

Innocent customers and unwitting users of PFAS-containing products are already liable for PFAS investigation and remediation costs – including significant drinking water treatment costs – as ​“responsible parties” under several state environmental laws. Likewise, if and when the federal government designates PFAS as ​“hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), companies that used PFAS – whether knowingly or not and without consideration of fault – may be strictly liable for cleanup costs at their own facilities and offsite disposal sites, as well as resulting injuries to natural resources and the costs to assess them. Our team is ready to assist businesses in connection with these potential liabilities arising under CERCLA and similar state laws, combining its years of experience in such matters with its unparalleled background in PFAS litigation and regulation.

In short, Kelley Drye is uniquely positioned to provide cutting-edge, yet cost-effective, legal services related to PFAS, through decades of experience and the most up-to-date knowledge of the shifting PFAS landscape.

What Are PFAS?

PFAS belong to a class of man-made chemicals known as perfluorinated compounds. There are thousands of PFAS chemicals in use and in the environment today. These chemicals include perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA), perfluorodecanoic acid (PFDA), perfluorononanoic acid (PFNA), perfluorobutanesulfonic acid (PFBS), perfluorohexanoic acid (PFHxA), perfluorohexanesulfonate (PFHxS), and HFPO dimer acid (GenX).

PFAS were originally developed in the 1940s, and put into large-scale manufacture and use by the early 1950s. These compounds have unique physical and chemical properties – including their carbon-fluorine bond – which can impart oil, water, stain, and soil repellency, chemical and temperature resistance, friction reduction, and surfactant properties to a wide range of products. The unique ability of PFAS to repel both oil and water has led to their application in numerous household goods and apparel.

PFOA and PFOS have been the most extensively produced and studied of these chemicals. They are persistent, bioaccumulative, and linked to various human diseases and cancers. While U.S. manufacturers have phased out their domestic use of PFOA and PFOS and other long-chain PFAS chemicals, they have shifted production to shorter-chain PFAS chemicals mentioned above.

Because of their unique properties, including waterproof, stain-resistant, and non-stick, PFAS are ubiquitous in industrial and consumer products and, now, in the natural environment:

• Food items: Food can be packaged in PFAS-containing materials, processed with equipment that used PFAS, or grown in PFAS-contaminated soil or water.
• Commercial household products: Stain- and water-repellent fabrics, non-stick products, polishes, waxes, paints, cleaning products. Commonly used products include Stainmaster® carpets, Scotchguard® fabrics, Teflon®, Gore-Tex®, and Tyvek®.
• AFFF: PFAS have been widely used in high performance firefighting products. The Department of Defense (DOD) has issued military specifications for AFFF since the 1960s, but AFFF has also become a common commercial product sold to private and public facilities around the world. For several decades, AFFF has been used by military bases, airports, oil refineries, industrial facilities, and local firefighters, and there are now thousands of sites across the United States. with related PFAS contamination.
• Industrial products and use: Facilities or industries (e.g., chrome plating, electronics manufacturing or oil refining and storage) where PFAS is used in the manufacturing process or is a byproduct.
• Waste facilities: Industrial and municipal waste treatment facilities and landfills treating PFAS-containing waste.
• Drinking water: Drinking water contamination typically associated with a specific industrial facility, treatment facility, or AFFF use.
• Living organisms: Animals and humans, where PFAS have the ability to build up and persist over time.

The Effects of PFAS

Risks to Human Health and the Environment

Because of their wide use, PFAS effect everyone. PFAS are found in the blood of virtually all humans and animals throughout the world, including newborn babies.

The EPA has identified PFOS and PFOA as emerging contaminants.

Research is ongoing, but current evidence suggests that PFOS and PFOA pose a significant risk to human health and the environment. Approximately 95% of people tested have PFAS in their blood, and PFAS can be detected in human breast milk and umbilical cord blood. Exposure to PFAS over certain levels may result in adverse health effects, including developmental effects, and independent epidemiological studies link numerous adverse health conditions to high exposures of PFOS or PFOA, including kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension, high cholesterol, liver damage, decreased fertility, and decreased antibody response to vaccines. Laboratory animals exposed to PFOS and PFOA have displayed changes in liver, thyroid, and pancreatic function, as well as developmental, immunological, and cancer effects.

Personal injury and related litigation regarding exposure to PFOA in particular has been ongoing since 1999. States and other public entities have increasingly brought litigation under their authority to protect the well-being of their citizens and their natural resources.

Risks to Businesses

Private businesses are also impacted directly and/or indirectly by these chemicals, either from their use during industrial production or from the use of products that contain these chemicals, such as AFFF. Potentially impacted industries include:

• Aerospace
• Automotive
• Construction
• Electronics
• Food
• Manufacturing
• Oil and gas
• Water
• Waste treatment

PFAS Regulation

Federal Action Regarding PFAS

In 2002, 2007 and 2013, EPA issued significant new use rules (SNURs) on various PFAS compounds under Section 5 of the federal Toxic Substances Control Act.

In 2016, the EPA published a drinking water health advisory of 70 parts per trillion (ppt) for PFOA and PFOS, individually and combined. Several states, including California, Minnesota, New Jersey, and Vermont, have adopted levels far lower than 70 ppt, and the levels set by states have been on a downward trajectory. Many states also include other PFAS in the adopted limits. Texas, for example, has set soil and groundwater limits for 16 different PFAS compounds.

In June 2018, the Agency for Toxic Substances and Disease Registry (“ATSDR”) of the Department of Health and Human Services released a draft Toxicological Profile for Perfluoroalkyls. The ATSDR set minimal risk level in drinking water for four PFAS: (1) PFOA at 78 ppt (adult) and 21 ppt (child); (2) PFOS at 52 ppt (adult) and 14 ppt (child); (3) PFHxS at 517 ppt (adult) and 140 ppt (child); and (4) PFNA at 78 ppt (adult) and 21 ppt (child). Exposure below these levels, the ATSDR explained, ​“is not expected to result in adverse health effects.” Like the EPA health advisories, these risk levels are nonbinding.

In February 2019, the EPA issued its PFAS Action Plan. This plan calls for short and long-term actions. A few important actions include:

• Initiating steps to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS;
• Beginning the necessary steps to propose designating PFOA and PFOS as hazardous substances;
• Developing groundwater clean-up recommendations for PFOA and PFOS;
• Promulgating Supplemental SNURs that require EPA notification before chemicals are used in new ways that may create human health and ecological concerns; and
• Using enforcement actions to help manage PFAS risk.

On October 22, 2019, the Director of the EPA, Andrew Wheeler, described the PFAS Action Plan as the ​“the most comprehensive action plan by the agency for an emerging chemical concern in our 49-year history.” Further, on February 26, 2020, the EPA issued an update and indicated that it has made progress under every aspect of the PFAS Action Plan.

Also, on December 4, 2019, EPA published an advanced notice of proposed rulemaking requesting comments on whether EPA should list 600 PFAS currently active in U.S. commerce, or any other PFAS, on the Toxics Release Inventory (TRI) required under the Emergency Planning and Community Right-to-Know Act (EPCRA).

On December 20, 2019, Congress amended EPCRA to add certain individual PFAS chemicals to the TRI program. These include the PFAS commonly known as PFOA, PFOS, GenX, PFNA, and PFHxS, and certain salts and other compounds associated with these PFAS, along with other PFASs listed under other statutes and regulations.

For example, in December 2019, the EPA issued a guidance document, Interim Recommendations to Address Groundwater Contaminated with PFOA and PFOS, which provides screening levels and preliminary goals to allow the EPA to develop final cleanup levels for PFOA and/or PFOS contamination of groundwater that feeds drinking-water supplies nationwide. The guidance recognizes that CERCLA and RCRA cleanup actions may flow from the information collected and the final cleanup levels once they are set. The guidance recommends the following actions:

• Screening sites using a recommended groundwater screening level based on target Hazard Quotient of .1 for PFOA and/or PFOS individually, which is currently 40 ppt;
• Using EPA’s PFOA and PFOS Lifetime Drinking Water Health Advisory level of 70 ppt (combined or individually) as the Preliminary Remediation Goal (PRG) for groundwater that is a current or potential source of drinking water, where no state or tribal MCL or other applicable or relevant and appropriate requirements are available or sufficiently protective; and
• In situations where the groundwater is currently being used for drinking water, EPA expects that responsible parties will address levels of PFOA and/or PFOS over 70 ppt.

After a lengthy public notice and comment period, on April 10, 2024, the EPA announced enforceable drinking water standards, pursuant to the Safe Drinking Water Act, for six PFAS: PFOA (4 ppt), PFOS (4 ppt), PFHxS (10 ppt), PFNA (10 ppt), HFPO-DA (“GenX”) (10 ppt), and mixtures that contain two or more of PFHxS, PFNA, HFPO-DA, and PFBS, according to a calculation called a ​“Hazard Index,” where the resultant calculation is equal to or greater than 1.0. These drinking water standards, referred to as Maximum Contaminant Levels ​“MCLs,” reflect the latest science with respect to these six PFAS and their impacts on human health and thus are significantly lower than the 2016 drinking water health advisory for PFOA and PFOS. Both PFOA and PFOS are considered to be ​“likely” human carcinogens.

State Action to Date

PFAS contamination is a nationwide problem. In the absence of binding federal standards, several states have developed standards and guidance values for PFAS in drinking water and groundwater. Many states have either adopted the EPA’s health advisories for PFOA and PFOS or selected the same health-based values, choosing to use the concentrations as advisory, non-regulated levels to guide the interpretation of PFOA and PFOS detections. Other states have developed health-based values based on their own analysis of the scientific data, and many have arrived at levels below 70 ppt.

In addition, several U.S. states and territories have brought litigation to address PFAS and/or AFFF contamination in their states, including Guam, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Northern Mariana Islands, Ohio, and Vermont.