Perfluorinated Chemicals: Looking Towards 2019
In a divisive political climate, one issue many Republicans and Democrats seem to agree upon is the need to take action on per- and poly-fluorinated chemical compounds (“PFAs”). These chemicals include, but are not limited to, perfluorooctanoic acid (“PFOA”), perfluorooctanesulfonate (“PFOS”), and “GenX.” PFAs have been used for many years in the manufacture of consumer goods including textiles, paper, packaging materials, cleaning solutions, and products using water- or grease-resistant coatings, as well as fire-fighting foam. Some research has raised concerns about potential health risks resulting from PFA exposure, and while these studies show statistical correlations rather than establish causality, the presence of the chemicals in groundwater in several states has drawn attention from Congress, federal regulators, states, and plaintiff’s attorneys. All signs indicate this rapidly evolving issue will continue to intensify in 2019. Current and past PFA manufacturers and users should diligently monitor these developments, take steps to assess their potential liability, and actively engage on regulatory and legislative initiatives.
Developments in 2018, such as EPA’s National Leadership Summit on PFAs and a highly publicized draft Toxicological Profile for PFAs released by the Agency for Toxic Substances and Disease Registry (“ATSDR”), reflected increased federal regulatory focus on PFAs. Debate continued on whether EPA’s drinking water office should set a Maximum Contaminant Level (“MCL”) for PFOA, PFOS, or more broadly, PFAs. Local activists, many drinking water utilities, their trade association, and several states have called for formal standards to alleviate the need for case-by-case determinations. EPA has not issued such legally enforceable standards because the Safe Drinking Water Act requires not just findings of adverse effects, but at least “a substantial likelihood” that PFAs occur at levels of public health concern, a condition that cannot be met on the basis of existing PFA studies; practicalities also matter, since such a rulemaking would be resource-intensive and take years to implement. EPA has moved ahead with additional monitoring for PFAs in drinking water and expects to issue a PFA management plan before the end of 2018. Given the public and political pressure on EPA to act, undoubtedly it will take even more aggressive action in 2019.
Congress has also shown substantial interest in the potential human health and environmental risks associated with PFA contamination. In recent months, both the Senate and House held hearings on PFAs and the role of the federal government in minimizing human exposure to these chemicals. PFAs were also a prominent issue in the recent Senate Environment and Public Works Committee nomination hearing of Alexandra Dunn to be Assistant Administrator of the EPA Office of Chemical Safety and Pollution Prevention. In addition, both the House and Senate have introduced legislation that requires federal regulation of PFAs in drinking water and provides resources for water-sampling programs. Notably, these bills and hearings have bipartisan support, an indication of a strong Congressional desire to continue focusing on this issue in 2019.
Litigation against manufacturers and commercial users of PFAs is expected to be a serious liability concern in 2019. Lawsuits are pending in multiple states, including Ohio, New York, and North Carolina, against manufacturers of PFAs and downstream companies, particularly manufacturers of fire-fighting foam. These most recent lawsuits follow a series of actions filed against PFA chemical manufacturers that have so far resulted in payments exceeding $1 billion in legal settlements.
Developments in all three areas show no signs of slowing down and will surely continue into 2019. Companies that may have manufactured, imported, or used PFAs and PFA-containing products should consider actively engaging with Congress and federal agencies on PFA policy issues, check federal, state, or local monitoring of drinking water supplies near their plants to obtain early warning of potential concern, and, where appropriate, evaluate their potential legal vulnerability for environmental contamination liability.
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