What are PFOA and PFOS?
Remember when everyone was in a tizzy about using Teflon or other non-stick cookware? That had to do with the chemical PFOA (perfluorooctanoic acid), which is one of the most commonly found and most studied types of perfluoroalkyl substances (PFAS). About 15 years ago reports on the toxicity of PFOA, along with resulting class action lawsuits, began hitting the news. More studies identified other PFAS chemical with toxic effects, including PFOS (perfluorooctanesulfonic acid).
PFAS are manmade chemicals that repel both water and oil, which made them attractive for many commercial and industrial uses since the 1940s including numerous consumer products, such as carpets, clothing, non-stick pans, paints, cleaning products, and food packaging. Firefighters, airports and the military use them in fire-suppressing foam. They do not easily break down and are water soluble, so very low levels are found throughout the environment, including groundwater and other potable water sources. This also means they accumulate in the body over time. Studies have found that more than 98% of the US population has PFAS compounds in their blood.
They are also toxic, with adverse human health effects ranging from increased cholesterol to effects on infant birth weights to immune system or thyroid disruption and even cancer. Studies continue to explore more about exposure risks in everyday life. Most recently, a study found exposure routes associated with dental floss and food packaging. That being said, the science continues to evolve and there are challenges with figuring out safe exposure levels for setting drinking water and cleanup standards.
What are the Regulators Doing?
Regulators have been paying attention. In 2016, the United States Environmental Protection Agency (USEPA) released a Drinking Water Health Advisory of 70 parts per trillion (ppt) for either PFOA or PFOS, or when both are combined. This is not an enforceable drinking water standard, but it has served as a guidepost for actions at the state level. Around 20 states from across the country have adopted or proposed drinking water and/or cleanup standards, or are considering other actions. These states include California, Vermont, Florida, New Jersey, New York, Massachusetts, New Hampshire, Texas, Minnesota, Michigan and Pennsylvania.
What Happened Last Week?
New Jersey. The New Jersey Department of Environmental Protection (NJDEP) has developed draft interim groundwater standards for both PFOS and PFOA and is requesting public input on a number of technical focus questions concerning the availability of data, toxicology, epidemiology or other studies and information. The proposed standards are for Class II-A aquifers, which means groundwater designated for use as potable water and is subject to health-based criteria that does not take into consideration remediation feasibility, treatability, or cost. This type of aquifer accounts for most of the State’s groundwater, so the impacts of the eventual new standards will be broad. Comments are due to NJDEP by 5:00 pm on Tuesday February 19, 2019.
Massachusetts. The Massachusetts Department of Environmental Protection (MassDEP) held a public meeting last week to consider a petition filed by conservation and community groups requesting, among other things, a drinking water standard of 1 part per trillion (ppt) for each PFAS compound as a class. This is a remarkably low standard as compared to USEPA’s health advisory standard of 70 ppt, and even New Jersey’s preliminary drinking water guidance level of 40 ppt for PFOA and recommended level of 13 ppt for PFOS. The petition also requests more community involvement and sampling to further advise the public about exposure risks in their communities. MassDEP plans to issue its decision on the petition on Monday, Jan. 28, 2019.
Regulating PFAS compounds is a hot button issue in a lot of states. Plenty of activity is expected this year in New Jersey, Massachusetts, California, New York and others. We are already seeing impacts of this new focus on existing remediation projects and on the horizon there is certainly a reopener risk for completed remediation sites. This is also an important due diligence issue. Follow our blog for updates and join us for our Environmental Hot Topics CLE in April 2019 for more details.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.