PFAS Contamination Lawsuits Continue
PFAS Contamination Lawsuits Continue
By: Hogan Jones
In August, Michigan’s Attorney General Dana Nessel filed complaints in both state and federal courts seeking damages against more than a dozen companies that manufacture and distribute firefighting foam.[1] Firefighting foam, or aqueous film-forming foam (AFFF) has been utilized by firefighters for years for the control and suppression of fires. According to Michigan’s Department of Environment, Great Lakes and Energy, AFFF is categorized as a Class B foam, meaning that it is used to extinguish Class B materials including accelerants like gasoline, jet fuel and other high-hazard flammable materials.[2]
While the use of Commercial Class B AFFF has been widely accepted, recent studies of its negative health impacts have shown that a set of chemicals present in the foam may be a cause for concern. Class B AFFF contains toxic per- and polyfluoroalkyl substances, or PFAS.[3] PFAS are a group of man-made chemicals used in a wide variety of industries worldwide. They can be found an many common household products including stains, water repellant fabrics, non-stick products, polishes, waxes, paints and cleaning products.[4] While these chemicals are relatively common in commercial use, they don’t break down and can become dangerous as they build up over time.[5]
Background
Since the 1940s PFAS have been used around the globe in a variety of different industries for both consumer products and commercial applications.[6] Numerous studies have since linked PFAS to testicular, kidney, liver and pancreatic cancer, reproductive problems, weakened childhood immunity, low birth weight, endocrine disruption, increased cholesterol and weight gain in children and adults.[7] Further, widespread use of the chemicals have lea
To track and combat PFAS contamination in their state Michigan established the Michigan PFAS Action Response Team (MPART), tasked with investigating the environmental impact of the chemicals. In doing so, MPART tested drinking water sources from around the state tracking contamination rates of PFAS in Michigan water sources. Following MPART’s investigation Michigan adopted new standards for PFAS in drinking water, reducing acceptable levels of PFAS across the board.[8] The Environmental Working Group (EWG) and the Social Science Health and Environmental Research Institute at Northwestern University track PFAS contamination reported at both the state and federal level including public water systems, military bases and industrial plants.[9] As of March 2019, the group found at least 610 contaminated sites in 43 states, affecting nearly 19 million people.[10]
Issue
Should the use of PFAS in commercial and consumer production be regulated at the federal level?
Resolution
The Safe Drinking Water Act (SDWA) protects public drinking water across the United States, regulating more than 90 contaminants posing a risk to public health.[11] Under the SDWA, the EPA has the authority to set caps on maximum contaminate levels of certain identified chemicals in public drinking water.[12] In January the U.S. House of Representatives approved a bill that would set a deadline to the Environmental Protection Agency to regulate PFAS levels through a set of national drinking water standards. To be effective, there are a number of items the bill should address. First, adding PFAS to the Toxic Release Inventory (TRI). The TRI requires US facilities to report annually how much of each chemical included on the list to the environment, including any management processes to clean them up.[13] Since the introduction of the National Defense Authorization Act for the fiscal year 2020, 172 PFAS added to the TRI, allowing the federal government to track the sources of contamination in the.[14] While this level of oversight is a step in the right direction, more is needed to effectively to solve the problem.
First, the federal government should ban the use of PFAS in all consumer products and consider doing so for firefighter foam near civilian areas and in training exercises. Such a ban would halt a major source of PFAS production in the future and ensure that the chemicals are used only when absolutely necessary in emergency situations. In addition, fire services cleared to use AFFF foam should be required to implement strict cleanup policies to ensure maximum mitigation of possible damage to the areas it is used. The EPA should also develop a comprehensive plan backed by the weight of the federal government to identify high-risk areas and begin cleaning up affected sites.
Next, The EPA and CDC should also set more strict enforcement standards on pollution allowances for PFAS. A 2018 CDC study recommended exposure limits up to ten times lower than the previously accepted standards by the EPA.[15] While states like Michigan have taken steps to control contamination of their water supplies, a comprehensive overhaul of standards at the federal level is needed. Finally, the federal government should hold PFAS producers accountable. Companies that produced PFAS and knowingly exposed the public to harmful contaminants should be required to pay their fair share for the cleanup. Through TRI tracking suggested above, these companies should be easily identifiable and their contribution to the public exposure estimated based on the findings. Otherwise, states like Michigan will be left to rely on long legal battles with producers in their states in order to hold those companies accountable for the damage done.
In the absence of federal regulations states like Michigan have been left to deal with the issue themselves, being forced to implement their own methods to combat further contamination. Given the scope of contamination, it is incumbent on states like Michigan to act quickly in dealing with the problem. However, federal action may be necessary to ensure effective cleanup efforts are carried out. Without it, efforts to resolve the problem will likely remain slow and inconsistent from state to state.
[1] Garret Ellison, Michigan Claims PFAS Makers Hid Firefighting Foam Danger in New Lawsuits, Michigan Live (August 21, 2020), https://www.mlive.com/public-interest/2020/08/michigan-claims-pfas-makers-concealed-firefighting-foam-danger-in-new-lawsuits.html.
[2] Michigan PFAS Action Response Team, Firefighting Foams and PFAS (Updated September 30, 2020), https://www.michigan.gov/pfasresponse/0,9038,7-365-86514-496805--,00.html.
[3] Id.
[4] Environmental Protection Agency, Basic information on PFAS, https://www.epa.gov/pfas/basic-information-pfas. (Last Visited December 10, 2020).
[5] Id.
[6] Id.
[7] Agency for Toxic Substances and Disease Registry, Per- and Polyfluoroalkyl Substances (PFAS) and Your Health (Updated June 24, 2020), https://www.atsdr.cdc.gov/pfas/health-effects/index.html. (Last visited November 8, 2020).
[8] Merit Labs, Inc., Michigan’s PFAS Drinking Water MCLS Adopted (July 25, 2020), https://www.meritlabs.com/blog/2020/7/25/michigans-pfas-drinking-water-mcls-adopted.
[9] Monica Amarelo, Mapping the PFAS Contamination Crisis: New Data Show 610 sites in 43 States (May 6, 2019), https://www.ewg.org/release/mapping-pfas-contamination-crisis-new-data-show-610-sites-43-states.
[10] Id.
[11] United States Environmental Protection Agency, PFAS Laws and Regulations https://www.epa.gov/pfas/pfas-laws-and-regulations. (Last visited December 9, 2020).
[12] Id.
[13] United States Environmental Protection Agency, What is the Toxics Release Inventory?, https://www.epa.gov/toxics-release-inventory-tri-program/what-toxics-release-inventory. (Last visited December 9, 2020).
[14] United States Environmental Protection Agency, Addition of Certain PFAS to the TRI by the National Defense Authorization Act, https://www.epa.gov/toxics-release-inventory-tri-program/addition-certain-pfas-tri-national-defense-authorization-act (Last visited December 9, 2020).
[15] Abrahm Lustgarten, Lisa Song and Talia Buford, Suppressed Study: The EPA Underestimated Dangers of Widespread Chemicals (June 20, 2018, 4:45 PM), https://www.propublica.org/article/suppressed-study-the-epa-underestimated-dangers-of-widespread-chemicals.