New guidance on ‘forever chemicals’ spurs mixed reaction from industry, activists | Courthouse News Service
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New guidance on ‘forever chemicals’ spurs mixed reaction from industry, activists

A government advisory lowered acceptable amounts of certain PFAS chemicals to levels so low they can’t be tested by any modern laboratory. Industry reps see exploding costs while environmentalists see a victory — mostly.

MOBILE, Ala. (CN) — When the Environmental Protection Agency’s new guidance for lifetime exposure to so-called “forever chemicals” was released in June, Brenda Hampton was, in all places, at the 3rd annual National PFAS Meeting in Wilmington, North Carolina. 

PFAS, an acronym for a family of synthetic chemicals known as per- and polyflouroalkyl substances, have been used since the 1940s and adapted for products ranging from nonstick cookware, waterproof fabrics, stain resistant carpets and rugs and packaging for food and personal care products, among other things. They are known as forever chemicals because they do not degrade over time

In May 2016, the EPA issued a health advisory for two common PFAS, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). The acceptable limit was set at 70 parts per trillion (ppt), both individually and combined, if both compounds are present. The EPA guidelines assume only 20% of the average human exposure to such chemicals comes from drinking water, while the other 80% originates from other sources.  

Regardless of the source, the Centers for Disease Control has since estimated most Americans have PFAS in their bodies, where it accumulates over time. While health testing is still considered emerging, elevated PFAS levels have been linked to increased risks for certain types of cancers, particularly kidney, thyroid and testicular cancer, while the chemicals may also affect the immune system, increase cholesterol levels, increase the risk of high blood pressure and affect the growth and development of fetuses and infants. 

But on June 15, the EPA dramatically lowered the limits for both PFOS and PFOA — .02 ppt for the former and .004 ppt for the latter —essentially declaring that any detectable amount of either two chemicals may be hazardous to human health. 

Hampton is the administrator of two north Alabama community groups focused on PFAS contamination in Morgan and Lawrence counties. In late 2021, manufacturer 3M was one of several companies that entered into a $98 million settlement agreement with local municipal organizations and utilities near Decatur, where a lawsuit alleged they polluted the Tennessee River and surrounding areas with PFAS. 

Hampton grew suspicious of environmental pollution in the region years before, after her mother required a kidney transplant in 1997. Hampton was living in Boston at the time but returned to Lawrence County to donate her own left kidney. Her mother’s, she said, had become “crystalized.”  

“During this time I was returning home, eating the food, consuming the water, and then when I got sick, my doctor told me I had been exposed to industrial toxins,” she said.  

Various companies and organizations spurred testing of the Tennessee River watershed in 2016 and shortly thereafter, the West Morgan-East Lawrence Water and Sewer Authority (WMEL) issued an advisory to customers not to drink its water. A pair of lawsuits followed, and the settlement agreements reached last year included reimbursement for certain related expenses, repairs and improvements to landfills and sludge disposal techniques, $22 million in payouts to municipal organizations and utilities and the bulk, $35 million, for a new recreational facility and ballfields. 

Hampton said the settlement did little to ease her community’s concerns. Even though WMEL cut the ribbon on a reverse osmosis filtration system last summer, Hampton said she’s spent the last seven years delivering bottled water, food and medical supplies and will continue so long as there is a need.  

“The lawsuit didn’t do anything for me and it didn’t do anything for a lot of people, but I am pleased to see those companies settling with some people and it's my understanding checks are being sent out now,” she said. “But this is a poor community where people have a lot of needs, and it has only been amplified by the pollution.”   

Dennie Robinson, plant manager of the West Morgan-East Lawrence Water & Sewer Authority’s new $30 million reverse osmosis water treatment plant on the Tennessee River, gives a public tour of the facility in November 2021. The plant was funded in part by a settlement agreement with 3M, after PFAS contamination was found in local drinking water sources. (Prouncey Robertson/Alabama House of Representatives)

At the National PFAS Meeting in Wilmington, Hampton said the EPA’s new guidance was met with excitement, but also reservation.  

“We were proud as a coalition but there is still a concern that we want PFAS gone, period,” she said. “It’s a manmade chemical that cannot be contained or destroyed and if we as a country can put a man on the moon, surely we can make a firefighting or nonstick product that is not cancer-causing.” 

Sonya Lunder was also at the meeting. As senior toxics policy adviser for the Sierra Club, she called the EPA’s announcement “a big and positive surprise.” Still, Lunder believes anyone who has had testing under the previous guidance should reevaluate their results or get retested. 

“There is no way to get around the fact that with potency levels this low for PFOS and PFOA, it’s going to call into question so many things about what are allowable emissions,” she said. 

Lunder, who lives in Colorado, said states have taken different approaches for regulating PFAS and noted there are methods of cleaning and filtering PFAS from water, air and soil, but acknowledged the technology is costly. 

“Right now there is a system in Cape Cod that is going to cost the average homeowner $500 per year per home, forever,” she said. “With the new guidance, the EPA also provided some infrastructure money and some states have been doling out revolving fund money to deal with PFAS, but the goal is to get better funding from the government, then making sure that people in affected areas are fully protected and ensuring the process is not corrupted.” 

Bryan K. Pate is the CEO of InSite Engineering in Hoover, Alabama, which provides consulting engineering services to water and wastewater utilities in Alabama and Georgia. He was less enthusiastic than Hampton and Lunder about the EPA’s updated health advisories, but agreed any intense remediation is going to be expensive.  

“We have been extensively involved in pilot testing and mitigation of multiple technologies since 2016, including executing what we were told was the largest comprehensive PFAS remediation pilot program in the United States in 2021,” Pate said in response to a series of emailed questions. “We always tell our customers the easiest way to take something out of the water is to never put it in, and this is especially true of PFAS compounds.” 

But until the EPA releases actual regulatory limits on PFAS chemicals, rather than nonbinding health advisories, Pate said the updated guidance only complicates testing and treatment.  

“My personal opinion of it is that EPA, by setting the [health advisory] at 1,000 times lower than their own laboratory detection limits of 4 ppt, has set the entire water industry up for failure in terms of public confidence," Pate wrote. “There is not a single utility in the United States that can honestly say they comply with the new advisory, because they simply can’t test to the parts per quadrillion level … and there is not a single private well owner who can verify that their new well meets the new advisory for the same reason.” 

Pate said PFAS can be removed from water with advanced treatment methods such as ion exchange or reverse osmosis, but it comes with a price.  

"The costs of compliance will vary significantly from system to system, but suffice it to say that whatever treatment processes they have now will simply become 'pretreatment' for the PFAS removal process," he wrote. “The cost of water is about to increase significantly in our country.” 

Navy Petty Officer 2nd Class Jeanette Rochefort gives the command to discharge Aqueous Film-Forming Foam in the hangar bay aboard the aircraft carrier USS Dwight D. Eisenhower in the Atlantic Ocean, March 29, 2019. The U.S. military continues to rely heavily upon PFAS-laden AFFF for fire fighting systems and as a consequence, are testing for PFAS contamination at military facilities nationwide. (Navy Petty Officer 3rd Class Jake Stanley/Department of Defense)

About 80 miles northwest of Birmingham, 3M was hit with a similar class action case in March brought by customers of the city of Guin's water department. There, attorney Anthony Ifediba said he has evidence the company has spoiled the water supply with PFAS for decades, even after conducting research indicating the forever chemicals bioaccumulate in fish, humans and other mammals. 

“This factory has been there since 1955, even before the EPA was founded,” Ifediba said. “At one time, all the wastewater from the facility ran out into Purgatory Creek, which is also the city’s water supply. We know that PFAS is very difficult to remove from water and you’d be shocked to see some of the test results.”  

In December 2020, based on testing recommended by the Alabama Department of Environmental Management (ADEM), the Guin Water Board sent letters to its 4,000-plus customers regarding PFOA and PFOS, noting it was detected above the 70ppt lifetime health advisory level established by the EPA in 2016. 

Documents filed with ADEM reveal that just prior to the lawsuit, the city’s treated water tested between 91.8 ppt and 73.4 ppt, but raw water surrounding the plant exhibited much higher amounts. At the plant’s outfall pipe on Purgatory Creek, the level of PFOS was 3,200 ppt. A manhole in close proximity was tested and revealed combined levels of PFOA/PFOS of 9,200 ppt. 

Ifediba said the settlement agreement was never made public, but the water board agreed to take remedial measures.  

“It’s my understanding they are going through the process of installing different filtration, but some of my clients for the last several years have been buying bottled water, or they have installed additional filters of their own,” Ifediba said. “But that means they are spending all this money they don’t have to drink clean water.” 

Ifediba also said several of his clients have underlying health conditions that can be linked back to PFAS exposure.  

In a written statement, 3M didn’t respond directly to inquiries about either lawsuit, other than to provide press releases about the settlement agreement in Decatur, but spokesman Sean Lynch said the company “has and continues to support science-based federal regulation of PFAS.” 

“We note that EPA’s action has been met with pushback from affected parties who have questioned the scientific basis for the action,” Lynch wrote. “We also have questions relating to the scientific basis for the action and look forward to contributing to the ongoing scientific debate. We want to work collaboratively with EPA and other interested stakeholders to find a science-based path forward to achieve our shared goal of protecting public health.” 

In 2019, 3M recorded $762 million in PFAS-related litigation charges, according to its 2021 annual report. 

Both before and after the EPA issued its new guidance, consumers in Alabama and northwest Florida have been alerted to test results exceeding the limits, old and new. In early June, the U.S. Navy held a pair of public meetings to discuss the results of groundwater testing around NAS Whiting Field and 11 outlying landing fields in south Alabama and northwest Florida. The fields support approximately 60% of the Navy’s fixed-wing flight training program and 100% of its initial helicopter training program in a partnership with the U.S. Marine Corps and U.S. Coast Guard.  

Since 1949, military pilots have used the fields to master the elements of flight, while auxiliary staff have remained on the ground, training on various support missions including firefighting. In the 1960s, the Navy and chemical manufacturer 3M began to develop a new tool to combat fires known as Aqueous Film-Forming Foam, which incorporated two key chemicals manufactured by 3M. 

At all 12 flight training facilities on the Gulf Coast, the Navy collected a total of 683 samples from water wells and of those, roughly 57% were classified as “non-detect” under the previous EPA guidelines. Another 279 samples had detectable levels of PFAS below the previous EPA health advisory and only 18 exceeded the previous health advisory. But under the new guidance, all of the detectable levels exceed the health advisory.  

In Mobile, Alabama, this week, the Mobile Area Water and Sewer Service (MAWSS) sent a consumer drinking water notice to its 91,000 accounts, noting testing of finished water between January and June of this year revealed PFOS levels as high as 1.6 ppt and PFOA levels as high as 2.2 ppt. Little other information was provided in the notices, other than an assurance that routine monitoring will be implemented and test levels will be updated in 2023.  

For customers concerned about PFAS, the utility recommended speaking to a doctor or health care professional and considering actions that can reduce exposure “while steps are being taken to further understand levels of concern and potentially regulated PFAS at the national level.” 

A class action lawsuit was filed against MAWSS for the PFAS contamination July 7.

Representatives for environmental agencies in Alabama, Florida and North Carolina – all of which published their own updated PFAS guidance in the weeks or months before the EPA changed the health advisory levels – said they were reviewing the material for compliance. ADEM external affairs chief Lynn Battle said the state’s guidance is based on the EPA’s, as the Legislature has not implemented any more stringent requirements.  

“As with any regulations that come forth, [PFAS is considered] an emerging contaminant,” she said. “Then you move forward down the line to see if you need regulations and that sort of thing. It happens a lot where things that are regulated now were not regulated five or 10 years ago, so when we saw [PFAS] starting to get attention, we just started gathering information to help the public understand what was going on. But most of it comes from EPA.” 

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