Two weeks ago, New York Attorney General Letitia James commenced a civil suit against the nation’s largest chemical manufacturers and several firefighting foam makers for what the complaint alleges is contamination of water supplies across the state with PFOAs, averring strict liability for public nuisance, strict products liability for defective products, strict products liability for failure to warn, and seeking restitution.
That lawsuit is in addition to the hundreds of PFOA suits pending across the country, including three class actions certified last month. And many more people are expected to seek judicial redress in the coming years.
Adverse health impacts from PFOA are being policed by the marketplace and enforced by the rule of law through these common law state tort liability suits.
Per and polyfluoroalkyl substances are a group of more than 4,000 man-made chemicals that includes PFOA, PFOS, GenX, and many other chemicals. PFOAs have been manufactured and used in a variety of industries around the globe, including in the United States since the 1940s and have been the most extensively produced and studied of these chemicals. PFOAs are very persistent in the environment and in the human body, meaning they don’t break down, accumulating over time, and as such have been referred to ‘forever chemicals’ making them an emergent environmental priority.
The EPA reports, “there is evidence that exposure to PFAS can lead to adverse health outcomes .. studies indicate that PFOA can cause reproductive and developmental, liver and kidney, and immunological effects in laboratory animals, .. and have caused tumors in animal studies.”
A peer reviewed study cited approvingly by the EPA describes 99.7% of Americans have a detectable PFOA in their blood!
Significantly, concentrations of PFOA in the U.S. population’s blood have declined since 1999 by 25%, from an average of about 4 parts per billion, in large measure in response to litigation, including a widely publicized 2000 court ruling that forced the major U.S. producer to for the first time share all documentation related to PFOA. Manufactures began exiting the marketplace and with EPA’s 2010 PFOA Stewardship Program where eight participating companies agreed to gradually phase out the manufacturing of the chemicals by 2015, new production of PFOA in the U.S. has been cut dramatically.
But make no mistake that while new production has been greatly reduced, PFOA products exist widely from fire fighting foam on boats, including U.S. Navy vessels to stain and water repellent fabrics as well as a variety of construction materials. Troubling to some is that green building programs, including LEED’s Materials & Resources credits do not track or even take into account PFOA.
Some suggest the U.S. government is complicit in the wrongdoing, including when the principal sources of PFOA pollution in groundwater are military bases and civilian airports where the federal government specified fire fighting foam containing PFOA. But possibly the larger issue is that the federal government and the states failed to regulate this space, at all, including never determining PFOA to be a hazardous substance, when regulation could have provided protections for the public and the environment while providing predictability to the manufacturers.
But this is not a U.S. problem alone. Populations in nearly all industrialized nations have a PFOA blood level of at least 2 parts per billion and PFOAs are still being produced in many countries.
In the U.S. there are no federal drinking water nor other regulatory standards for PFOA; although there are more than two dozen bills pending in Congress that portent to regulate this space. Earlier this year the EPA issued “Draft Interim Recommendations” to address groundwater contaminated with PFOA, including articulating EPA’s lifetime health advisory standard for PFOA of 70 parts per trillion.
Activated carbon and reverse osmosis are both used to treat PFOA in drinking water (.. and you should filter your drinking water), but arguably neither remove the harmful chemicals, rather relocating or diluting the PFOA; hence the term forever chemicals. But last week, the U.S. Air Force together with partners Clarkson University and GSI Environmental conducted a test using an “enhanced contact plasma reactor, a closed system utilizing water, electricity and argon gas to degrade PFOS and PFOA in minutes.” This technology may in the future make treatability and actually removing PFOA from the environment realistic.
If we are going to be good ancestors, our lofty responsibility to humanity as observed by Jonas Salk, it is critical that there be more and better science about PFOAs including methodologies to minimize adverse health effects, as these forever chemicals accumulate in human beings across the planet.
Today, adverse health impacts from PFOAs can most efficiently be recognized by the marketplace and enforced by tort law in state courts, redistributing resources from those who engage in risky business activities manufactured dangerous products to those who are damaged; in lieu of some new, after the fact, one size fits all top-down government regulation in this class of chemistry, like the flawed EU measures to ban more than 4,000 chemicals in the PFOA class beginning July 4, 2020.
Adverse health impacts from PFOA should be policed by the marketplace and enforced by existing tort law.