Hunton Andrews Kurth LLP
Daniel J. Grucza
December 10, 2018
Because of their widespread environmental presence, persistence and bioaccumulation, the group of substances known as PFAS have been described as a “Perfect Storm” of liability. The number of plaintiff’s suits concerning PFAS have spiked in the last few years. Also, EPA faces increasing bipartisan calls from Congress to adopt new drinking water standards and cleanup levels. In the interim, states are filling the void. In October 2017, the New Jersey Department of Environmental Protection announced a maximum contaminant level (MCL) of 14 parts per trillion for PFOA. Some NGO’s have called for levels as low as 1 part per trillion.
Despite all of this activity, scientific evidence regarding the public health and environmental effects of PFAS remains in an early stage of development. While the call to act in the face of uncertainty is understandable, action in the face of known uncertainties presents the risk of imposing enormous cleanup costs with little or no benefit to human health. This result could in itself be counterproductive from a public health and environmental standpoint. If PFAS regulations are to be based on sound science and not speculation, it is important to consider approaches that allow for risk management while the science catches up.
What are PFAS?
“Perfluoroalkyl” and “polyalkyl” substances (PFAS) are highly manmade compounds that are resistant to heat, water and oil. These properties have led to the use of PFAS compounds in a wide-range of products such as carpets, furniture, clothing, cookware and food packaging. They are also used in fire retardant foam at airfields and industrial processes involving flammable and combustible liquids. For an in-depth discussion on these compounds, see this earlier post here on the Nickel Report.
PFAS have been blamed for a variety of potential public health risks ranging from increased risk of certain cancers and developmental delays, to elevated cholesterol levels. But the health data on PFAS remain decidedly fuzzy. More research is needed to confirm or to rule out possible links between health outcomes of potential concern. In the meantime, regulatory action needs to account for the pervasive scientific uncertainties in structuring approaches to manage risks while the science develops.
In this regard, EPA’s health advisory level of 70 parts per trillion for PFOA and PFOS was purposely established based on a number of conservative assumptions (e.g., elevated daily drinking water rate) to address scientific uncertainties in managing public health risk. Such an approach to regulatory risk management is common in the face of uncertain science, in order to provide protection while allowing time for the development of more robust science.
Future Regulatory Approaches
In its June 2018 Draft Toxicological Profile of PFAS, the Agency for Toxic Substances and Disease Registry (ATSDR) suggested minimal risk levels for PFOA and PFOS that are up to 10 times lower than EPA’s current health advisory level. ATSDR has made it clear that its recommendations are not intended to be cleanup levels or health effect standards.
The motivation to set PFAS drinking water cleanup standards at barely detectable concentrations stems in part from the understandable desire to avoid any potential risk, no matter how speculative or small. However, when regulations overstep risk assessment and science, remediation cost and the cost of compliance may increase to a level that itself raises concerns about the appropriate allocation of society’s resources. For a discussion on regulation of these compounds in California, see this post from my colleague Diana P. Martin.
The application of standards without a rigorous scientific basis and without regard to the overall impacts of the standard on society can divert finite resources away from contaminants with clearly demonstrated health effects. It can also create confusion and mistrust when reasonable, science-based standards are eventually developed. EPA’s current health advisory level provides time to accomplish the vital goal of protecting human health without imposing enormous cleanup costs with little or no benefit to human health while providing time for the science to develop. In the meantime, states and others should work with EPA on constructive regulatory solutions as the science catches up.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Grucza and may not reflect the opinions of Synergy Environmental, Inc., Hunton Andrews Kurth LLP or either of those firms’ clients.