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By: Joshua G. Ferguson and Alec D. Tyra
On June 15, 2022, the EPA released health advisories for four PFAS compounds – PFOA, PFOS, GenX and PFBS. The new health advisories are significant for three reasons. First, new health advisories signal increasing scientific consensus on the negative health consequences associations with PFAS exposure. Second, the EPA has expanded its health advisories to include additional PFAS compounds beyond PFOA and PFOS – the most common PFAS compounds. Third, the new health advisories are another milestone marking expanding and accelerating regulatory efforts from the federal government to curb PFAS pollution.
What Are PFAS?
Per-and-Poly Fluoroalkyl Substances (PFAS) are a broad class of manmade, highly stable chemicals which exhibit both grease and water repelling properties. Because of their chemical structure—containing long carbon alkyl chains with highly electronegative functional groups—PFAS displayed both hydrophobic and lipophobic characteristics. By being both hydrophobic and lipophobic, PFAS made excellent coatings to create “non-stick” surfaces on both consumer products and industrial components. This unique and highly useful property made PFAS ubiquitous in products. However, these unique properties make PFAS resistant to environmental degradation are now categorized as Persistent Environmental Pollutants (PEPs). PFAS have been accumulating for decades and chronic exposure is now linked to a host of negative health effects, including certain types of cancer. With increasing awareness of PFAS toxic qualities, the Federal and State Governments have started implementing some measures to regulate PFAS pollution.
Two of the most prevalent PFAS compounds – PFOA and PFOS – have largely been phased out of by U.S. manufacturers due to health studies indicating increased risk for certain cancers. Manufacturers replaced PFOA and PFOS with “short chain” PFAS compounds like GenX and PFBS. New health studies suggest short chain PFAS like GenX and PFBS are more toxic than originally indicated and exhibit similar negative health consequences to PFOA and PFOS. These new health studies have led to the EPA issuing its new health advisory and signal a national drinking water standard regulation.
EPA Health Advisories for PFAS
EPA health advisories are for contaminants that are not subject to National Primary Drinking Water Regulation (NPDWR) under the Safe Drinking Water Act. Health advisories serve as information to drinking water systems and officials responsible for protecting public health when emergency spills or other contamination situations occur. They help Tribes, states, and local governments inform the public and determine whether local actions are needed to address public health impacts in affected communities but are not binding regulations.
In 2016, the EPA issued health advisories for PFOA and PFOS with the lifetime exposure level at 70 parts per trillion. The new updated health advisory sets a combined lifetime exposure level for PFOA and PFOS at near zero (.004 parts per trillion for PFOA and .02 parts per trillion for PFOS) In addition, the EPA also issues health advisories for GenX and PFBS, the PFAS compounds that replaced PFOA and PFOS. The EPA’s health advisory for lifetime exposure to GenX is 10 parts per trillion and 2000 parts per trillion for PFBS.
Significance of the New Health Advisories
The EPA stated that these new health advisories would remain in effect until the agency develops a NPDWR for PFAS compounds in Fall of 2022. The health advisories the EPA issued for PFOA and PFOS portend an equally strict federal regulation that will create significant new liabilities for water utilities and other companies who may discharge PFAS into drinking water systems. In addition, many states may look to revise their own PFAS drinking water standards that were previously based on the 2016 health advisories.
More broadly, the PFAS health advisories have sweeping implications for future Federal regulations. The current administration is rapidly taking action to strictly regulate PFAS under major environmental statutes such as CERCLA, RCRA, the Clean Water Act and the Safe Drinking Water Act. PFAS regulation under some or all these statutes will create major liabilities for businesses and the insurance carriers that provide those business coverage.
To learn more about PFAS and future liabilities please join attorneys Josh Ferguson and Alec D. Tyra for their webinar PFAS Forecast: New regulations lead to new Liabilities for businesses and carriers. Registration is free. CE and CLE credit are available for CA, IL, MA, OH, NY, NJ, PA, MD, GA and FL.
For more information on PFAS or the webinar, please contact Joshua Ferguson, Alec Tyra, or any of FMG’s environmental attorneys.