Ned Witte is a shareholder in the Environmental Strategies Practice Group at Godfrey & Kahn. He represents clients in the service and manufacturing industries as well as government bodies in a wide range of environmental matters across the U.S., including Wisconsin.
By Ned Witte Guest contributors: Rula A. Deeb, senior principal at Geosyntec Consultants, and Lydia R. Dorrance, senior scientist at Geosyntect Consultants
Consider this: as recently as a year ago, the term PFAS was relatively unknown to many lawyers, engineers and other environmental professionals. So, what is PFAS? PFAS is the acronym for per- and polyfluoroalkyl substances, a family of more than 5,000 man-made chemicals. Based on their persistence in the environment, PFAS are often referred to as forever chemicals. Few recent environmental issues have caught the attention of industry, regulators, environmental professionals and the media like PFAS. In fact, some have even questioned whether the frenzy to address PFAS impacts is outpacing the toxicological understanding of these substances.
Why the hysteria?
The following are seven reasons, as well as many points of reference, that help explain the current PFAS landscape in the U.S.:
1. PFAS are still new
In the last several years, and for some states, in the last 12 to 18 months, regulators have turned their attention to PFAS. States are now beginning to identify PFAS sources and areas of contamination within their borders. As a part of the process, they are developing screening criteria or standards for safe concentrations of PFAS in groundwater, drinking water and surface water. They are also identifying qualified laboratories to test for PFAS.
Though first formulated nearly 75 years ago and broadly used in commercial applications since the 1950s, environmental professionals only began looking in earnest for PFAS contamination in the last decade. And, with more than 5,000 PFAS compounds in existence, understanding the toxicity, occurrence, fate and transport of these chemicals is challenging. This limits current understanding of optimal cleanup approaches.
2. PFAS contamination is alarming
While further toxicological studies are needed to understand the human health risks posed by PFAS, the rush to regulation is now pronounced. For example, the State of Wisconsin is considering a recommendation from the Wisconsin Department of Health Services to regulate PFAS in groundwater at 20 ng/L. Few precedents exist where hazardous substances have been regulated at nanograms per liter (ng/L) or parts per trillion (ppt) levels. What does 20 ng/L actually mean? One analogy is that 20 ng/L is the equivalent of waiting 32,000 years for 20 seconds to pass.
Don t look for the alarm to subside. Later this year, major motion picture and psychological thriller, Dark Waters, starring Mark Ruffalo and Anne Hathaway, is set for release. Dark Waters is based on a lawsuit filed by Rob Bilott on behalf of a class of plaintiffs against DuPont relating to PFAS contamination in drinking water. In 2017, DuPont agreed to pay more than $600 million to settle about 3,500 personal injury claims related to that action.
3. PFAS are already in our blood
According to the National Groundwater Association, studies have estimated that 95 percent of the U.S. population has been exposed to PFAS and has measurable concentrations in their bloodstream. In addition to the exposure of plant workers who produced and directly applied PFAS in products, Americans are exposed to PFAS regularly. For example, waterproofing in clothing and leather goods, food packaging, cosmetic and hygienic products, dental hygiene products, nonstick pots and pans, carpet and furniture textiles, and fire suppressant foams often contain PFAS. Efforts are underway to identify the essentiality of PFAS in these and other products as well as potential PFAS alternatives.
One essential use may be Aqueous Film Forming Foam (AFFF), a fire suppressant agent. AFFF is applied in massive quantities to control dangerous fires at airports and military installations and PFAS are required to be used by military specifications. Sadly, application often lacks the foresight to where the excess PFAS containing products will end up, like groundwater. Groundwater is relied on by 38 percent of the U.S. population for drinking water and is often the greatest pathway of human PFAS exposure.
4. PFAS are functioning as designed
When 3M first formulated the chemical substances that became part of the PFAS family, their chemists modified the fluorine and carbon bonds to make a markedly strong and lasting product to resist water, oil and other liquids. The market responded positively due to the remarkable conveniences PFAS created and the pervasive application of PFAS in commercial products ensued. These desirable characteristics also make PFAS extremely difficult to manage in the environment. It is persistent, does not naturally degrade, and its physical and chemical properties make it highly mobile, allowing it to migrate quickly through groundwater. These combined attributes make PFAS a challenge to remediate and, unfortunately, chemists did not anticipate the potential toxicity of PFAS to human health.
5. The federal government is not leading
The rise of PFAS as an environmental concern generally coincided with the new U.S. Environmental Protection Agency administration of Scott Pruitt under President Donald Trump. One of President Trump s objectives was to eliminate federal regulations, including environmental rules. As of September 2019, the Trump administration rolled back or started the rescission of 85 environmental regulations. In this landscape, and in spite of some bipartisan support for federal PFAS standards, the EPA has only articulated non-enforceable drinking water health advisories of 70 ppt....