Just two days after this blog post EPA proposed legally enforceable levels, called Maximum Contaminant Levels (MCLs), for six PFAS in drinking water at the levels described below. EPA anticipates finalizing the regulation by the end of 2023. The EPA announcement said, “that if fully implemented, the rule will prevent thousands of deaths and reduce tens of thousands of serious PFAS attributable illnesses.”

Much action is expected over PFAS in 2023. Where in recent years climate change has sucked the air out of the room overtaking other devastating events that occur due to humanity’s impact on the environment, PFAS is now on the agenda of government, businesses, and consumers alike. But this intersection of science and law is unsettled and emergent and material change in a single year may be overly optimistic.

This year began with the U.S. Court of Appeals for the District of Columbia Circuit, on January 23 granting EPA’s motion to dismiss American Chemistry Council v. EPA Petition For Review, challenging EPA’s lifetime health advisory levels to 0.004 ppt for PFOA and 0.02 ppt for PFOS. EPA describes those levels as “near zero” and admits they are “below EPA’s ability to detect at this time” (.. translation, current science cannot detect PFAS chemicals at levels below 4 parts per trillion), acknowledging for the first time the safe level of consumption for those two chemicals is practically zero. 

Lest there be any question, this is a big deal because a peer reviewed 2020 study cited approvingly by the EPA describes 99.7% of Americans having detectable PFAS in their blood! (Note, in this post we use PFAS as shorthand for per and polyfluoroalkyl substances that are a group of more than 4,000 man-made chemicals that includes PFOA, PFOS, GenX, etc., but only about 40 of them can be measured.)

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.”

And this is not a U.S. problem alone. Populations in nearly all industrialized nations have a PFAS blood level of at least 2 parts per billion. 

The three judge panel in the American Chemistry Council case held in an unpublished per curiam order, “Petitioner has failed to carry its burden of establishing standing. .. Despite relying on associational standing, petitioner has neither alleged that the challenged conduct affects all of its members nor identified any specific member who would have standing to pursue this action.” That is, the case was dismissed, not for lack of merit, but because the Court found that the Chemistry Council did not meet the procedural requirement of having “standing” for its member businesses to bring the lawsuit.

While there will no doubt be other challenges to EPA’s nonbinding health advisory levels, there are other lawsuits pending across the country arising from PFAS claims, including two class actions that are expected to conclude this year.

And outside of courtrooms, last month the Biden Administration announced efforts to clean up these “forever chemicals” from the environment, including as examples among the many projects in the recently enacted Infrastructure Law, providing $75 Million to address PFAS in drinking water in Pennsylvania and $23.1 Million for New Hampshire.

We blogged last year about EPA Proposing Designating PFAS as Hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as the “Superfund” law and we expect a final rule in 2023. PFAS is no doubt a developing environmental catastrophe but that proposed rule listing PFAS as a hazardous substance is yeeting the matter without regard that that solution may do more harm than good.

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 removing PFAS including methodologies to minimize adverse health effects, as these forever chemicals accumulate in human beings across the planet, but it is imperative that organizations stop producing and using PFAS products at the earliest possible date.

And increasing numbers of businesses are taking steps to reduce or eliminate their use of PFAS, including last week outdoor retailer REI that had been the subject of a more than year long public campaign by its customers to drop PFAS products announced upcoming hard ban. And back in 2019, Patagonia announced that it would phase out the use of PFAS in all of its products by 2025. That growing trend reflects a broader shift toward ESG both because their stakeholders are demanding it and because it is the right thing.

All of that observed, action on PFAS by the EPA is an important and ongoing issue that highlights the need for broader proactive measures to address the health of our natural environment. While the science behind PFAS cleanup is still evolving, the EPA’s efforts toward these chemicals, although late to the game, demonstrate a commitment by government to protecting people and the planet from this environmental catastrophe.

It remains to be seen how efficacious government action will be (.. yes, the federal government must continue to throw money at cleanups, especially in areas adjacent to airports and military installations where it was the polluter). Quite likely the better answer to this ecological damage will be found in state courts enforcing existing tort causes of actions against businesses that engaged in the risky behavior of using PFAS. And maybe and most likely to succeed, businesses will promptly eliminate their use of PFAS, mimicking Patagonia’s “We’re in business to save our home planet.”

We will continue to work with clients that may have products that contain PFAS used on their land and in their buildings ranging from pizza boxes, pesticides, and nonstick cookware to firefighting foam, cleaning products, and stain resistant products, and help develop best practices for drinking water wells.

What is clear is that in 2023 we will see important steps toward addressing the challenges posed by PFAS contamination. Your business may need to be part of the solution.