Photo Credit: https://www.wright-pierce.com/mass-guideline-for-pfas/
By: Alexandria Heard
Student Materials Editor, American Journal of Trial Advocacy
Introduction
As the global economy grows in size and strength and the demand for better, cheaper products increases, businesses—big and small—work tirelessly to keep up the pace and satisfy the demand. As a direct result of satisfying the needs of a demanding global economy, companies attempt to make the best products at the cheapest price often not fully accounting for certain environmental costs associated with their production. For many companies, this model requires extensive research and development, which will often develop into new and better ways to make the company’s product. This was the case with E.I. DuPont de Nemours and Company. DuPont developed a product containing an innovative chemical that would have a marketable advantage over its competitors.[1] That product was Teflon®.[2] However, as would later be determined, the costs associated with this highly-sought product would be high, and the environmental effects of DuPont’s failure to properly dispose of its chemical waste would prove to be a mere foreshadowing of the related issues that would lie ahead for the environment. To respond to these developing issues, law makers and regulators took action to provide greater oversight. Likewise, lawyers and judges had to learn to deal with an entirely new slew of regulations and statutes. And as science continues to develop, all of these actors must continue to learn and develop their roles to meet the perpetually changing and ever-growing environmental issues that confront them.
Despite a long history of living off of natural resources and naturally disposing of what remained, which was the case throughout the millennia, today’s emerging contaminants are the product of man’s own creation. The emerging contaminants that are the subject of this blog are perfluorooctane sulfonate (PFOS) and perfluorooctanic acid (PFOA)—chemicals that belong to a larger group of chemicals called per- and polyfluoroalkyl substances (PFAS).[3] PFAS is a grouping of man-made chemicals that initially appeared around the 1940s.[4] PFAS “encompass[es] a whole family of manmade chemicals that contain a carbon and fluorine atom backbone.”[5] PFOS and PFOA are the two most studied chemicals of PFAS.[6] These synthetic, man-made chemicals can be found in a plethora of common items, such as nonstick cookware, household cleaners, water resistant clothes and fabrics, and stain-resistant clothes and fabrics, just to name a few.[7] Aside from consumer users, PFAS has also been utilized in more industrial settings by the military, airports, and fire and rescue agencies.[8] The popularity of these man-made chemicals is because “they are resistant to heat, water, and oil.”[9]
These chemicals’ sought-after properties did not come without a cost. One of the largest concerns surrounding these widely used chemicals is that PFOS and PFOA are biopersistent.[10] Not only do these chemicals not break down in nature, they also build up in the human body.[11] Further, experts have found that “[t]here is evidence that continued exposure above specific levels to certain PFAS may lead to adverse health effects.”[12] Much in part due to the discovery of these adverse effects, PFOA and PFOS “are no longer manufactured in the United States because of concerns about their toxicity.”[13] However, there is still the looming issue of the chemicals’ biopersistence in our environment.
It is partially in response to these concerns that lawmakers have enacted legislation to thwart the adverse environmental effects of these chemicals’ biopersistence and to ensure their safe disposal. One such statute that is used to force the cleanup from PFAS contamination is the Resource Conservation and Recovery Act (“RCRA”). According to the Environmental Protection Agency (EPA), RCRA “gives EPA the authority to control hazardous waste from the ‘cradle-to-grave.’”[14] RCRA “is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.”[15] In addition to the federal enforcement provisions of RCRA, the act has an additional, interesting feature that allows states to enforce the provisions of RCRA.[16] This means that “a state’s EPA-approved program under the RCRA operates in lieu of the Federal program.”[17]
Little Hocking Water Ass’n, Inc. v. E.I. du Pont Nemours and Co.
A noteworthy example of how RCRA can operate to address some of these environmental concerns is the case of Little Hocking Water Ass’n, Inc. v. E.I. du Pont Nemours and Co. E.I. DuPont de Nemours and Company, or as it is commonly known as, DuPont Company, has been around for over 200 years, originally operating as a gunpowder manufacturer.[18] However, DuPont’s long “history of scientific and technological breakthroughs” did not keep it from finding itself in front of the United States District Court for the Southern District of Ohio.[19] In this case, the plaintiff, a public water provider, brought suit under the citizen suit provision—codified at 42 U.S.C.A. § 6972—provided for under RCRA.[20] The citizen suit provision, in its relevant part, allows “any person” to bring a civil suit against
any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . .[21]
The plaintiff, utilizing this provision, alleged that the defendant’s “waste disposal practices . . . caused imminent and substantial harm to health and the environment . . . .”[22] In particular, the plaintiff alleged that as a result of the defendant’s actions the earth and groundwater under the plaintiff’s “Wellfield” had been contaminated with PFOA, “otherwise known as C8, and other PFCs (perfluorinated compounds).”[23] The defendant used these chemicals to make DuPont’s “Teflon® related products” and continued to use these chemicals until C8 was finally and completely phased out in 2013.[24]
In this particular case, because the court found that the plaintiff did not demonstrate that the untreated water on plaintiff’s property that contained C8 presented a threat to human health, the court granted the defendant summary judgment for RCRA claims concerning the endangerment to health.[25] The court held this because it found that the plaintiff was unable to show a threat to human health via a pathway of exposure other than the fact that someone might drink the untreated water on the plaintiff’s Wellfield.[26] However, on the issue of endangerment to the environment, the court found that there was a genuine issue of material fact.[27] Specifically, court determined that “the record show[ed] there [was] a reasonable cause for concern that plants and animals in the Wellfield, and living things in the greater environment, may continue to be exposed to a risk of harm if C8 is not removed from the Wellfield.”[28]
Post-Little Hocking Water Ass’n
Although the current case law on PFOS and PFOA is rather limited, there is still information to work with, and agency action has worked to fill the void where the case law is lacking. As an example, on February 14, 2019, after much anticipation, the EPA released its PFAS Action Plan.[29] In the introduction, the EPA states that “contamination from legacy PFAS and uncertainty regarding the safety of newer, alternative, PFAS compounds in the environment are a continuing concern for the federal government, states, tribes, and local communities.”[30] The PFAS Action Plan includes both long and short term actions and research.[31] The EPA states that wherever it “finds that there may be an imminent and substantial endangerment to public health or welfare related to PFAS contamination, the [EPA] will consider using its response authority under . . . [the] Resource Conservation and Recovery Act (RCRA) section 7003.”[32] RCRA is also a statutory authority that can be used “to define PFOA and PFOS as . . . hazardous substances.”[33] The PFAS Action Plan is “the first time [the] EPA has built a multi-media, multi-program, national communication and research plan to address an emerging environmental challenge like PFAS.”[34] The PFAS Action Plan is supposed to provide “tools and technologies” needed “to provide clean and safe drinking water . . . and to address PFAS at the source—even before it gets into the water.”[35]
But, have there been any steps taken since the PFAS Action Plan has been released by the EPA? On April 25, 2019, the EPA took the first step in accomplishing one of the key components in the PFAS Action Plan.[36] The EPA “released draft interim guidance for addressing groundwater contaminated with perfluorooctanoic acid (PFOA) and/or perfluorooctane sulfonate (PFOS) for public review and comment.”[37] This interim guidance contained the EPA’s recommendations “for screening levels and preliminary remediation goals (PRGs) to inform final cleanup levels for PFOA and/or PFOS contamination of groundwater that is a current or potential source of drinking water.”[38] The EPA referred to this action as “one of [the EPA’s] most important commitments under the PFAS Action Plan.”[39] This guidance was developed using the science that the EPA had pertaining to PFAS, which included the EPA’s health advisories on PFAS.[40] It was available for public comment for forty-five days.[41]
H.R. 2500: National Defense Authorization Act
Most recently, this issue has arisen in House Bill 2500, The National Defense Authorization Act for Fiscal Year 2020, passed in the House of Representatives on July 12, 2019.[42] Under Section 323 of the Bill, Congress made multiple findings about PFOS and PFOA.[43] Congress’s concern with PFOS and PFOA is in part due to the Department of Defense’s use of the chemicals.[44] Congress stated that “[b]ecause PFOS and PFOA extinguish petroleum fires quickly, the Department of Defense and commercial airports began using aqueous film forming foam containing PFOS and PFOA in the 1970s.”[45] Congress found that “[a] common human exposure to PFOS and PFOA is by consuming contaminated drinking water.”[46] Because of the exposure through water, farms close to military installations that have been shown to be contaminated with PFOS and PFOA are being adversely affected.[47] Section 323 aims to provide federal funding to provide clean water and to provide for the treatment of water contaminated with PFOS and PFOA.[48] The Bill is presently in the Senate for consideration.[49]
Conclusion
Over half a
century later, we are still dealing with damage caused by the biopersistence of
PFAS. Even though it is no longer
produced in the United States, it is nearly impossible to find an individual
that has never been exposed to PFAS.[50] There is evidence showing that PFAS is very
dangerous, and it is truly a concern for all people. Since we seemingly cannot avoid some
exposure, we need to ensure that soil and groundwater cleanup are taking top
priority. Even though the case law is
not robust, I suspect that in the coming years, we will, unfortunately, see
more and more RCRA cases filed to demand the cleanup of dirty land and water in
an effort to preserve, or in some cases, improve an area’s health and safety. But, in my opinion, House Bill 2500 is, at
the very least, a step in the right direction, and I’m excited to see what is
next in the efforts to clean up the dirty water we are plagued with.
[1] Roy J. Plunkett, Sci. Hist. Inst., https://www.sciencehistory.org/historical-profile/roy-j-plunkett (last updated Dec. 14, 2017).
[2] Id.
[3] Technical Fact Sheet – PFOS and PFOA, EPA (Nov. 2017), https://www.epa.gov/sites/production/files/2017-12/documents/ffrrofactsheet_contaminants_pfos_pfoa_11-20-17_508_0.pdf.
[4] Basic Information on PFAS, EPA, https://www.epa.gov/pfas/basic-information-pfas (last visited July 23, 2019).
[5] Ramona Darlington, What is PFAS – and Why Should You Care?, Envtl. Protection (Jun. 15, 2017), https://eponline.com/Articles/2017/06/15/What-is-PFAS.aspx?p=1.
[6] Technical Fact Sheet – PFOS and PFOA, EPA (Nov. 2017), https://www.epa.gov/sites/production/files/2017-12/documents/ffrrofactsheet_contaminants_pfos_pfoa_11-20-17_508_0.pdf.
[7] Rachel Ross, What Are PFAS?, Live Science (April 30, 2019, 2:57 PM), https://www.livescience.com/65364-pfas.html; Ramona Darlington, What is PFAS – and Why Should You Care?, Envtl. Protection (Jun. 15, 2017), https://eponline.com/Articles/2017/06/15/What-is-PFAS.aspx?p=1.
[8] Ramona Darlington, What is PFAS – and Why Should You Care?, Envtl. Protection (Jun. 15, 2017), https://eponline.com/Articles/2017/06/15/What-is-PFAS.aspx?p=1.
[9] Id.
[10] Chang, Adami, et al., A Critical Review of Perfluorooctanoate and Perfluorooctanesulfonate Exposure and Immunological Health Conditions in Humans, 46 Critical Reviews in Toxicology 279, 280 (Jan. 12, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4819831/pdf/itxc-46-279.pdf.
[11] Ramona Darlington, What is PFAS – and Why Should You Care?, Envtl. Protection (Jun. 15, 2017), https://eponline.com/Articles/2017/06/15/What-is-PFAS.aspx?p=1.
[12] Research on Per- and Polyfluoroalkyl Substances (PFAS), EPA, https://www.epa.gov/chemical-research/research-and-polyfluoroalkyl-substances-pfas (last visited July 23, 2019).
[13] Ramona Darlington, What is PFAS – and Why Should You Care?, Envtl. Protection (Jun. 15, 2017), https://eponline.com/Articles/2017/06/15/What-is-PFAS.aspx?p=1.&Page=2.
[14] Resource Conservation and Recovery Act (RCRA) Overview, EPA, https://www.epa.gov/rcra/resource-conservation-and-recovery-act-rcra-overview (last visited July 23, 2019).
[15] Little Hocking Water Ass’n, Inc. v. E.I. Du Pont de Nemours & Co., 91 F. Supp. 3d 940, 951 (S.D. Ohio 2015) (quoting Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996)).
[16] Tenn. Riverkeeper, Inc. v. 3M Co., 234 F. Supp. 3d 1153, 1157 (N.D. Ala. 2017).
[17] Id. (internal quotations omitted) (quoting Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1006 n.13 (11th Cir. 2004)).
[18] History, DuPont, https://www.dupont.com/about/our-history.html (last visited July 23, 2019).
[19] Id.; Little Hocking Water Ass’n, Inc. v. E.I. Du Pont de Nemours & Co., 91 F. Supp. 3d 940 (S.D. Ohio 2015).
[20] Little Hocking Water Ass’n, Inc., 91 F. Supp. 3d at 947.
[21] 42 U.S.C.A. § 6972(a)(1)(B) (West 2019); Little Hocking Water Ass’n, Inc., 91 F. Supp. 3d at 947.
[22] Little Hocking Water Ass’n, Inc., 91 F. Supp. 3d at 947.
[23] Id.
[24] Id.
[25] Id. at 968.
[26] Id.
[27] Id. at 970.
[28] Id.
[29] EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan, EPA (Feb. 2019), https://www.epa.gov/sites/production/files/2019-02/documents/pfas_action_plan_021319_508compliant_1.pdf.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] EPA Acting Administrator Announces First-Ever Comprehensive Nationwide PFAS Action Plan, EPA (Feb. 14, 2019), https://www.epa.gov/newsreleases/epa-acting-administrator-announces-first-ever-comprehensive-nationwide-pfas-action-plan.
[35] Id.
[36] EPA Takes Important Step Under PFAS Action Plan, EPA (Apr. 25, 2019), https://www.epa.gov/newsreleases/epa-takes-important-step-under-pfas-action-plan.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] National Defense Authorization Act for Fiscal Year 2020, H.R. 2500, 116th Cong. (2019).
[43] H.R. 2500 § 323.
[44] H.R. 2500 § 323(a)(1).
[45] H.R. 2500 § 323(a)(1).
[46] H.R. 2500 § 323(a)(3).
[47] H.R. 2500 § 323(a)(6).
[48] H.R. 2500 § 323(b)(3).
[49] H.R. 2500: National Defense Authorization Act for Fiscal Year 2020, Govtrack, https://www.govtrack.us/congress/bills/116/hr2500 (last visited Aug. 4, 2019).
[50] Research on Per- and Polyfluoroalkyl Substances (PFAS), EPA, https://www.epa.gov/chemical-research/research-and-polyfluoroalkyl-substances-pfas (last visited July 23, 2019).
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