Just a few years ago, per- and poly-fluoroalkyl substances (PFAS) were a potential emerging contaminant. Discussions about PFAS were confined to the environmental community and a few isolated locations near PFAS manufacturing operations. Few outside of our relatively small circle had ever heard of PFAS and likely weren’t interested in the technical and legal issues surrounding this group of chemicals.
Fast forward a few months, and PFAS are not only a “must-include topic” at environmental conferences, it is on the lips of politicians as they make their rounds headed toward the next election cycle. It’s in the news with increasing regularity (and with varying degrees of reporting accuracy). With the (still) lack of defensible scientific data regarding health risks, much of the reporting has focused on a growing list of PFAS-related lawsuits.
Before looking at some of the legal action, there have been some developments from federal agencies. In addition to the February announcement of the United States Environmental Protection Agency (EPA) Action Plan, the Food and Drug Administration (FDA) recently issued a report.
Food and Drug Administration on PFAS
In conducting “scientific work to understand PFAS in food,” on June 11, 2019, the FDA reported that “Overall, our findings did not detect PFAS in the vast majority of the foods tested. In addition, based on the best available current science, the FDA does not have any indication that these substances are a human health concern, in other words a food safety risk in human food, at the levels found in this limited sampling.”
That concludes the relatively positive PFAS developments.
The legal action is piling up against those companies that manufactured or used products containing PFAS chemicals, and there is no indication that this legal action will slow down.
New Hampshire Names Eight PFAS Defendants
On May 29, 2019, New Hampshire filed their complaint against 3M Company, E.I. Du Pont De Numours, The Chemours Company, Tyco Fire Products, Buckeye Fire Equipment, Kidde-Fenwal, Inc., and National Foam, Inc.
The State is bringing this action to require that Defendants pay all of the costs, expenses, and damages associated with the Defendants’ acts and omissions as alleged in this Complaint, including, but not limited to such costs, expenses, and damages for (1) the investigation, remediation, cleanup, restoration, removal, treatment, and monitoring related to the contamination of the State’s groundwater and surface water, fish, wildlife, marine resources, and other natural resources; (2) the provision of potable drinking water where drinking water supplies have been, or will be, contaminated; (3) implementation of treatment technologies necessary to eliminate further injury to soil, groundwater and surface water, sediment, fish, wildlife, marine resources, other natural resources, and human health and the environment; (4) costs associated with safely and properly disposing the Defendants’ aqueous film-forming foam (AFFF); (5) costs associated with the testing for and evaluation and treatment of contamination in public and private wells contaminated or potentially contaminated from the use or disposal of AFFF; and (6) all such other costs and expenses that have been or will be incurred as a result of the Defendants’ acts or omissions as alleged in this Complaint.
Fairbanks, Alaska, PFAS Lawsuit
On April 26, 2019, the City of Fairbanks, Alaska, joined the growing list of communities that are filing lawsuits against manufacturers of PFAS chemicals. In this case, the City is suing 3M Company and Tyco Fire Products.
Some of the allegations in the complaint include:
“Throughout the 1950s, 3M’s own internal animal studies consistently concluded that PFAS are ‘toxic.’ ”
“3M knew as early as the mid-1950’s that PFAS bio-accumulates in humans and animals.”
“A 1956 study at Stanford University concluded that the PFAS manufactured by 3M binds proteins in blood.”
“By the early 1960s, 3M understood that PFAS are stable, persist in the environment and do not degrade.”
“In 1970, the authors of a scientific journal article observed after conducting tests on a 3M product containing PFAS that the product was “highly derogatory to marine life and the entire test program had to be abandoned to avoid severe local stream pollution.”
“Studies undertaken by 3M in the 1970s demonstrated that PFAS was [sic] even ‘more toxic than was previously believed.’ ”
Michigan Issues RFP for Attorneys
Michigan, too, is getting ready to take legal action. Attorney General, Dana Nessel, issued a Request for Proposal (RFP). The RFP is to solicit proposals from attorneys and law firms to serve as Special Assistant Attorney Generals.
Dana Nessel has been vocal on this issue stating, “Our state will spend hundreds of millions of dollars addressing these problems ‒ costs that should not be borne by the people who live, work and play here. Many of those same people were poisoned here and we will make those responsible pay for their greed.”
Dragun Corporation Approach to PFAS
While everyone still has the same “handicaps” with respect to PFAS (such as the lack of toxicological data), investigation fundamentals still apply, regardless of the contaminant. Accordingly, we continue to focus on the fundamentals (which are too often ignored) of soil and groundwater investigations. See our Assessment and Remediation Resource Page for details.
With respect to those manufacturing companies that are evaluating their current and historical discharges that may contain PFAS, we take a measured approach. The technologies and methods associated with analytical testing and PFAS treatment are changing rapidly, as are the requirements from government agencies. We strive to base our advice on defensible data and an educated view of what the future may bring with respect to PFAS.
If you have any questions or need assistance with a PFAS-related issue, contact our senior environmental engineer, Matthew Schroeder, P.E., at 248-932-0228, Ext 117.
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