Guest Column | November 29, 2021

State AG Enforcement As EPA Finds PFAS More Toxic Than Previously Thought

By Miguel Leyva


According to a new study conducted by the U.S. EPA, “forever chemicals” are far more harmful than previously believed.

On November 16, the EPA announced that it was asking its Scientific Advisory Board to evaluate draft scientific documents on the health effects of two types of perfluoroalkyl substances (PFAS): perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA).

The EPA delivered four draft documents to the Science Advisory Board, including new scientific information. It also included new analyses indicating that negative health consequences from PFOA and PFOS exposure can occur at considerably lower levels than previously thought and that PFOA is a potential carcinogen.

As the EPA continues PFAS analyses, State Attorneys General (AGs) continue to be increasingly focused on many key enforcement targets, including PFAS issues.

The threat provided by aqueous film-forming foam (AFFF) is one of the specific challenges. Some governments have been compelled to spend tens of millions of dollars to provide safe drinking water and filtration systems to vulnerable areas near military bases that employ AFFF. Many of these issues have risen to prominence amid the COVID-19 epidemic. 

State AGs Focus On PFAS Issues, Including Contamination Of Drinking Water

Environmental issues, such as PFAS discharges, have recently become a significant focus for State AGs. Since the 1940s, PFAS chemicals have been widely used in consumer items and by industry. They're hazardous because they take a long time to degrade and stay in the bodies of humans, animals, and the environment. Standard applications include fire extinguishing foam, food packaging, water, and stain repellents.

PFAS exposure has been related to immune system effects, kidney and testicular cancer, thyroid problems, liver damage, and other adverse health outcomes.

The following are some notable examples and pertinent areas of inquiry:

  • The EPA's proposal to include per- and poly-fluoroalkyl compounds as a class in the Contaminant Candidate List 5 has received support from a coalition of 19 State AGs.
  • California Attorney General Rob Bonta and Michigan Attorney General Dana Nessel joined the group of 19 attorneys in urging the US Senate Committee on Environment and Public Works (EPW) to pass the PFAS Action Act. The Act would change federal environmental laws to address PFAS pollution and provide remediation funding.
  • PFAS litigation: District of Columbia Attorney General Racine is investigating and possibly filing a lawsuit against a chemical producer to distribute and sell synthetic pesticides.
  • North Carolina's Attorney General Josh Stein has filed four cases against 14 producers of AFFF, a fire retardant commonly used by firemen, military personnel, and other first responders. PFAS, or persistent organic chemicals, are found in AFFF and are poisonous, stay in the environment, accumulate in individuals, and pose significant health hazards.

State AGs have increasingly sought the assistance of outside counsel to litigate their lawsuits to meet these challenges. This is a significant shift in strategy from only five years ago.

EPA To Establish Enforceable Drinking Water Standards For PFOA And PFOS By 2023

PFOA and PFOS are two of the most widely-known and researched PFAS. Dupont used PFOA to create Teflon, whereas 3M utilized PFOS in Scotchgard. The EPA fought for their phase-out in 2015, but they, along with other PFAS, remain in the environment.

Previously, Air Force bases trained firefighters to use AFFF containing PFAS to extinguish aircraft fires. However, persistent use and discharge of the foam resulted in the chemicals seeping into the groundwater and poisoning nearby communities' water wells.

According to Environmental Working Group researchers, more than 200 million Americans are believed to be exposed to PFAS through their drinking water. And PFAS has been found in the blood of practically everyone examined by the Centers for Disease Control and Prevention.

The EPA has stated that enforceable drinking water limits for PFOA and PFOS will be established by 2023, and the recent draft documents have the role to achieve this aim. One of the latest findings is that exposure to chemicals can diminish the efficacy of immunizations by reducing antibody production following vaccination.

EPA is pursuing clearer, stronger, and science-based efforts to protect communities affected by legacy PFOA and PFOS pollution under a new PFAS Strategic Roadmap. They hope that by taking this step, the agency will get a thorough review from experienced scientists, which will help them better understand this preliminary data as they revise PFOA and PFOS health advisories and establish regulations to protect communities from these contaminants.

In drinking water, the non-enforceable limit for PFOA and PFOS is 70 parts per trillion (ppt). However, the Environmental Working Group and other organizations have long urged that it be substantially more potent, at one ppt. The new development was greeted positively by the public health advocacy group.

PFOA and PFOS are hazardous chemicals that are still present in millions of Americans' drinking water. Nobody should have to be concerned about PFOA and PFOS in their tap water increasing cancer risk, inflicting reproductive harm, or harming the immune system. The EPA's recent action is significant to establish health-protective drinking water standards for PFOA and PFOS based on the most recent scientific evidence of human harm.

AGs Urge Swift Senate Action To Improve Federal Standards Governing Toxic PFAS

Congress's decision to regulate PFAS and support required research and analysis of their effects could help states respond more effectively to the contamination.

Thus, the coalition of 19 AGs argues in a letter to EPW leadership that the substantial dangers presented by PFAS, along with the tens of millions of dollars spent by coalition states to protect residents from these threats, need immediate legislative action.

The Senate should pass or build on the bipartisan PFAS Action Act of 2021, which the U.S. House of Representatives passed in July. The alliance states' legislative aims are listed in detail in the letter, including:

  • Categorizing PFAS compounds as "hazardous substances" under the federal Superfund law would encourage timely and effective cleanup,
  • Categorizing PFAS as "hazardous air pollutants" under the federal Clean Air Act and preventing their unsafe incineration would ensure the public's health is protected,
  • Adopting national PFAS drinking water regulations and regulating PFAS releases would also ensure the public's health will be protected,
  • Assisting drinking water companies to help them lower PFAS levels in public water supply,
  • Providing states with funding to protect against PFAS pollution and respond to it,
  • Providing medical screening for all US Department of Defense personnel and the general population who may have been exposed to high levels of PFAS, and
  • Prohibiting the use of AFFF and limiting its storage at federal sites.

Attorneys general from Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Washington, Wisconsin, and the District of Columbia joined Attorney General Nessel and Bonta in sending the letter to the Senate EPW Committee. 

Miguel Leyva works as a case manager at Atraxia Law, a firm committed to assisting firefighters and veterans who have been exposed to PFAS at work. Miguel assists firefighters and veterans in obtaining evidence to support their injury cases, ensuring that they receive the monetary compensation they deserve.