Scott Pruitt, the nominee to lead the US Environmental Protection Agency (EPA) said, “PFOA needs to be addressed quickly whether under TSCA or the Safe Drinking Water Act.” If the potential incoming director of the EPA has this issue on their radar, it deserves some attention by the regulated community.
PFAS, PFOA, PFOS
When you start digging into this group of emerging contaminants, you find that there are a lot of four letter “P” acronyms, and it can get confusing. In general, per- and polyfluoroalkyl substances (PFAS) refers to the group of chemicals that includes Perfluorooctanoic acid (PFOA) and Perfluorooctane Sulfonate (PFOS).
While PFAS are not widely regulated, we are seeing increased attention at the state level, grassroots level, and international level on flame-retardant chemicals in general, including another “P” acronym, PBDE (Polybrominated Diphenyl Ethers) used as flame retardants (see PBDE: An Emerging Environmental Regulatory Concern?). Among the group of PFAS chemicals, PFOA and PFOS are the focus of attention.
What is PFOA?
“Perfluorooctanoic acid (PFOA)…is a man-made chemical. It is used in the process of making Teflon® and similar chemicals” (American Cancer Society). As provided in a position statement by DuPont, “PFOA is a processing aid that was widely used by many manufacturers to produce a broad range of industrial and consumer products for more than 60 years.” This use includes not only a wide range of consumer products, but fire-fighting chemicals as well.
PFOA was phased out in the United States starting around the year 2000 (though not globally). However, because they were widely used, are persistent in the environment (they don’t easily degrade), and bio-accumulate (they accumulate in humans and animals over time), they continue to be a potential human health and environmental issue.
PFOA Found Widely in Serum Samples
Perhaps an indication of how widespread PFOA is can be inferred from a report by the Centers for Disease Control (CDC) and Prevention. In this report, the CDC says, “CDC scientists found PFOA in the serum of nearly all the people tested, indicating that PFOA exposure is widespread in the U.S. population.”
PFAS: State and Federal Action
Some states have taken a more proactive approach regarding PFOA. In the Northeastern United States, the Governors of New Hampshire, New York, and Vermont sent a letter to the EPA in March 2016 requesting “personal attention to the challenges created by PFOA contamination…”
Some states, such as New Hampshire, are testing drinking water for perfluorinated chemicals, including PFOA and PFOS (see January 2017 testing results).
Vermont has issued groundwater standards for PFOA and PFOS. The State has also “…listed PFOS and PFOA as a Vermont listed hazardous waste when concentrations are 20 parts per trillion or greater.”
In response to growing concerns, the EPA issued a lifetime health advisory in November 2016. The Fact Sheet from the EPA states in part, “To provide Americans…with a margin of protection from a lifetime of exposure to PFOA and PFOS from drinking water, EPA established the health advisory levels at 70 parts per trillion.”
Also, as part of the Federal Safe Drinking Water Act’s Third Unregulated Contaminant Monitoring Rule (UCMR 3) published on May 2, 2012, six perfluorinated compounds, including PFOA, were included.
It’s important to remember that health advisories are not regulations, and as such, they are not enforceable.
While there are earnest efforts underway to understand what all of this means from a human health and environmental perspective, there is no shortage of environmental groups suggesting grave consequences, based simply on detection of PFOA and/or PFOS. This, of course, ignores the Paracelsus maxim, the dose makes the poison.
PFOA and PFOS: Considerations Going Forward
There is still much to learn about the potential effects of persistent chemicals such as PFOA and PFOS. We’ve seen some of our clients, proactively, chose to test for certain classes of PFAS chemicals.
Could this play into future property transactions? Perhaps. Some areas, such as near military bases where firefighting chemicals containing PFAS may have been used, could be more likely to have detections of PFAS-related chemicals.
As stated previously, enforceable regulations for PFAS are not common, but the incoming EPA director believes this to be important, so you should (at a minimum) discuss this with your environmental advisory team (consultants and attorneys).
If you would like more information, contact my colleague Matthew Schroeder (mschroeder@dragun.com). And as always, feel free to contact us regarding any environmental issue at 248-932-0228.