New kids on the block are getting serious attention. No, not the 90's boy band, but "emerging" contaminants known as per- and polyfluoroalkyl substances (PFAs).
Think about the water coming out of your tap for a second. If your drinking water is provided by a public water system, that journey from its source to your kitchen sink is heavily regulated, and rightly so. Sometimes (not usually) the original source of that water is pristine and requires minimal to no treatment. In the more likely case, however, the source is impaired with unsafe levels organic and inorganic contaminants from runoff into streams or reservoirs, and suppliers have to treat the water before providing it to the public. We thought we knew almost everything about the chemicals and constituents typically found in drinking water, and their toxicity to humans. That is, until a "new" group of synthetic (a/k/a man-made) and dangerous chemicals known as PFAs entered the drinking water conversation.
In recent years, PFAs have been gaining attention at the federal level, and have now become a primary regulatory focus in New York. Also, courts across the country are beginning to recognize the importance of these chemicals and the hidden dangers they pose to drinking water supplies.
But first: what are PFAs?
PFAs consist of a group of man-made chemicals found in surface coatings, oil- and heat-retardant products, and stain-resistant products. Perfluooroctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are the two compounds in this group that pose the biggest health risks for humans. PFOS is commonly used to make firefighting foams, as PFAs provide effective fire suppression properties that are great for fighting petroleum-based fires. PFOAs are also used for coatings and making heat- and stain-resistant materials, rendering them effective for products like clothing, carpets, fabrics, and paper packaging for food. Although PFOAs are being phased out, they are still used when making commercial and household products.
Due to their chemical composition, PFAs do not break down in the environment easily and remain intact in air and water for thousands of years. Their stability means they are extremely persistent in our bodies - in some cases lasting up to eight years in human tissue - leading to accumulation over time.
Why are PFAs important?
PFAs have now been classified in New York State as an "emerging contaminant," because it is a chemical or compound that has reasonable chance of being released into the environment; there is potential risk to human health or the environment; and there are currently no federally enforceable regulations in place. PFAs have been used in consumer products since the 1940s, and while small amounts of exposure to PFAs are common, because they do not break down easily, they can remain in the environment for a long period of time.
Residents in towns near industrial facilities that use or produce these types of chemicals, as well as military or firefighting training sites, are reportedly being exposed to higher levels of PFAs as the facilities discharge (or historically discharged) the chemicals into surface and groundwater, or deposit particles into the air, thus affecting public water drinking supplies.
Studies have found that that higher level of exposure to PFAs can have health impacts on the development of liver and thyroid function, risks to developing fetuses, as well as several types of cancers. With more scientific data necessary, the U.S. Environmental Protection Agency (EPA) has only published health advisory acceptable levels for PFOA and PFOS of no more than 0.07 parts per billion (ppb), in combination with non-enforceable guidance documents, leaving it up to individual states to impose stricter requirements.
New York's Response to PFA Exposure
New York has attracted a lot of attention regarding PFAs recently due to the alleged long-term exposure that some residential communities have experienced from nearby former industrial facilities and military/civilian training stations in upstate New York. The state is taking matters into its own hands to minimize human exposure to PFAs.
New York listed PFOA and PFOS as regulated "hazardous substances" in 2016, enabling the state to use its resources to clean up PFAs-contaminated sites under the State Superfund program. New York State Department of Environmental Conservation (DEC) is also imposing new requirements applicable to private party investigations as well as on DEC itself that PFAs be sampled on all state Superfund and Brownfield Cleanup Program sites, regardless if there has been no evidence of the chemicals at a site in the past.
DEC can ask private parties to do such additional investigations even on sites believed to have been fully remediated in the past, based upon "re-opener" provisions in settlement agreements, consent orders, and releases previously issued. "Re-openers" are provisions in agreements with DEC that allow the Department to require additional remedial or investigatory work from private parties should any new information comes to DEC's attention suggesting the possibility of contamination not previously remediated that poses a threat to human health or the environment. By virtue of these "re-opener" provisions, DEC can ask for additional work for any new data concerning PFAs contamination at sites, despite any previous release or sign-off that work at a particular site was completed to DEC's previous satisfaction.
In 2016, Governor Cuomo created a Water Quality Rapid Response Team, led by the DEC and New York State Department of Health (DOH), to address specific drinking water and groundwater contamination issues. The team is currently monitoring PFA levels by sampling public and private wells across the state. The Governor has also proposed the Clean Water Infrastructure Act of 2017, which could earmark $2 billion towards upgrading aging wastewater infrastructure. New York will also continue to perform additional studies involving PFA exposure, investigating links with cancer and non-cancerous health effects.
Actions Being Taken in Other States
PFAs are also on the radar in other states, as the city of Westfield, Massachusetts and Colorado Springs, Colorado both filed suits for exposure to toxic firefighting foam that contained PFAs. In 2017, Michigan launched a PFAS Action Response Team (MPART); the first multi-agency action team of its kind in the nation. Multiple branches of the Michigan state government are working together to investigate potentially contaminated sites and gain more knowledge about the chemicals. This year, Washington State legislature also passed HB-2658, banning the intentional use of PFAs in food packaging made from plant fibers, pending a determination by the Washington Department of Ecology that safer alternatives are available This is expected to go into effect in 2022 . California also added PFOA and PFOS to the list of Proposition 65 chemicals.
With additional states becoming aware of the health impacts of PFAs, we should expect to see more scientific studies, hopefully leading to federal regulation of PFAs. Until then, states must continue to lead the way.
Contact the attorneys of Periconi, LLC at (212) 213-5500 if you are a considering or defending a lawsuit regarding exposure to PFAs or drinking water contaminants, or if you would like more information on PFAs and other drinking water contaminants.