Emerging Contaminants Update:  New Federal Report Highlights PFAS Risks as New York State Court Certifies Class Action for PFAS Groundwater Contamination


By Jonathan Kalmuss-Katz

For decades, per- and polyfluoroalkyl substances (“PFAS”) have been widely used in industrial processes and consumer products, including non-stick cookware, strain resistant fabrics, and firefighting foams.  PFAS have emerged as a focus of regulatory concern only in recent years, however, as new studies have detected PFAS in groundwater and drinking water supplies and have associated adverse health effects with these compounds at increasingly low concentrations.  Last month, the U.S. Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry (“ATSDR”) released a long-delayed draft report  finding that PFAS present human health risk at levels 7-10 times lower than the United States Environmental Protection Agency’s (“EPA’s”) 2016 drinking water health advisory levels.  Moreover, while there are no binding limits specific to PFAS under the Safe Drinking Water Act, EPA intends to release groundwater cleanup recommendations for two key PFAS chemicals by the end of this year, and a New York State Supreme Court Justice recently certified a class action lawsuit arising from PFAS contamination of the drinking water supply in Petersburgh, New York.  Sive, Paget & Riesel is tracking developments relating to PFAS and other emerging contaminants in an ongoing series of “Emerging Contaminants Updates.”

On June 20, ATSDR released a draft “Toxicological Profile for Perfluoroalkyls,” which “characterizes the toxicologic and adverse health effects information for” 14 PFAS chemicals, including perfluorooctanesulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”).  ASTDR calculated minimal risk level (“MRLs”) for four such chemicals, which, according to the Association of State Drinking Water Administrators, equate to approximately 11 parts-per-trillion (“ppt”) for PFOA and 7 ppt for PFOS.  Those MRLs, which are “an estimate of the amount of a chemical a person can eat, drink, or breathe each day without a detectable risk to health,” are substantially lower than the 70 ppt health advisory levels that EPA established for PFOA and PFOS in 2016.  However, neither the MRLs nor EPA’s health advisory levels are legally binding on drinking water suppliers.

During a May 2018 PFAS National Leadership Summit, recently-departed EPA Administrator Scott Pruitt announced plans to “initiate steps to evaluate the need for a [binding] maximum contaminant level … for PFOA and PFOS” and stated that EPA is “currently developing groundwater cleanup recommendations for PFOA and PFOS at contaminated sites and will complete this task by fall of this year.”  Following that summit, EPA commenced a series of regional stakeholder meetings on PFAS, beginning with a session in New Hampshire last month.

In the absence of binding federal standards, several states and private litigants have begun to take action on PFAS.  Last year, New Jersey adopted the nation’s most stringent drinking water standards for PFOA and perfluorononanoic acid (“PFNA”), and in June New York State filed suit against six companies that manufactured fire-fighting foams containing PFOS and PFOA, seeking to recovery more than $38 million the state has expended on investigation and remedial costs.  Earlier this month, a New York State Supreme Court Justice certified a class action lawsuit brought by residents of Petersburgh, New York, who claim to have been harmed by PFOA contamination from a former Taconic Plastics Limited facility.  Last year, DuPont and the Chemours Company agreed to pay $670.7 million to settle a multi-district litigation relating to PFOA contamination from the production of Teflon.

In light of the regulatory and legal risks, PFAS have also emerged as a key issue in environmental due diligence, and purchasers of contaminated property should be aware of potential liabilities associated with PFAS and other emerging contaminants that historically have not been covered by Phase I or II Environmental Site Assessments.  For additional information about PFAS and other emerging contaminants, contact Christine Leas, Jennifer Coghlan or Jonathan Kalmuss-Katz.