Momentum builds in fight against ‘forever chemicals’ in water, environment

It is often difficult for the media and political eyes to figure out where the tipping point is on an issue that is both complicated and moving quickly. Incremental changes are often difficult to separate from the daily news, and doing a step-back to pause and assess what it all means is required.

For those following the environmental issue involving PFAS — short for “per- and polyfluoroalkyl substances” and a decades old group of more than 5,000 substances found in products like nonstick pans (e.g. “Teflon”), food packaging, waterproof jackets, stain resistant treatment of carpeting, and firefighting foam used mostly on military bases and at commercial airports — the environment and political issues involving it have hit the critical mass part on the equation in recent months.

Researchers last spring found that PFAS contamination was not only in the ground and water on the earth’s surface, but it was also falling from the sky, raining health contaminants on cities like Chicago and Cleveland.

New data and a change in thought on PFAS is raining down as well. The U.S. EPA issued a long-awaited assessment in October for what regulations need to be put in place, states are coming up with standards of the amount of PFAS in drinking water is permissible, more lawsuits against companies that manufacture PFAS or use it in their products are being filed, and local governments across the country are playing catchup to try to figure out what the healthcare risks are for people who are live near PFAS chemical dumping grounds and have high levels of the chemicals in their blood streams.

The EPA’s update on PFAS policies includes sections that suggest the chemical may be headed to Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and possible “Superfund” status. Environmental activists claim the EPA’s “Strategic Roadmap” wasn’t enough, while pro-business conservatives say it went too far.

But this is not like previous big chemical problems like “polychlorinated biphenyls” (PCBs) that were used in hydraulics and paint dyes in the latter half of the 1900s, as well as asbestos, fibers widely used in construction as insulation, but with cancer causing side effect. It is thought to be much bigger than both.

PFAS’s are more widely used, and they never break down and remain present in the human body without any known end, thus being nicknamed the “forever chemicals” by advocates of more government regulations or outright banning of them all.

One can see how the PFAS’s have integrated themselves into virtually every part of society by just looking at news on the subject in the past few weeks:

* Longtime makeup maker CoverGirl Cosmetics faces a lawsuit after Toxin Free USA found evidence of PFAS “Forever Chemicals” in CoverGirl makeup products sold to the public. The case is based on a recent peer-reviewed study which detected high levels of PFAS in the cosmetic products, including lipstick, eyeliner, mascara, foundation, concealer, lip balm, blush, and nail polish. “This is a product that people are spreading on their skin day after day, so there’s really a potential for significant exposure,” said Tom Bruton, one of the study’s authors.

* Eyeglasses cleaned by anti-fogging sprays and cloths to prevent condensation when wearing COVID-19 masks or face shields may contain high levels of PFAS substances as well, a Duke University-led study published Jan. 5th found. “It’s disturbing to think that products people have been using on a daily basis to help keep themselves safe during the COVID pandemic may be exposing them to a different risk,” said Heather Stapleton, a professor of environmental chemistry and health at Duke, who initiated the study after reviewing the ingredient label on a bottle of anti-fogging spray she purchased for her 9-year-old daughter.

*After a report found packaging used by nearly all the big players in the business had various levels of PFAS in them, fast food giant Wendy’s, with its headquarters in Dublin OH, announced it was going to rid PFAS from its packaging materials in the U.S. and Canada by the end of 2021. While some states are banning PFAS from food packaging, McDonald’s, Wendy’s, and Whole Foods Market, Inc., are taking the lead by doing it nationally themselves, among at least 15 companies that have announced policies in recent years to phase PFAS out of packaging they use or sell.

The Minneapolis Star-Tribune did a story in September which lays out the history of how what started as a non-stick Teflon chemical compound and through the decades becoming a huge EPA issue. And how the lack of action by the federal government and big corporations in the past have morphed into making PFAS cleanup action very expensive presently, costing the public muti-billions of dollars in clean up now.

Part of the issue that is coming into focus is the better understanding that health risks of some types of PFAS are less speculative, prompting a rush to the courtroom by people exposed to the chemicals. But much is still unknown. Dr. Elsie Sunderland, associate professor of environmental science and engineering at Harvard, testified before the U.S. House Committee on Science Space & Technology on Dec. 7th on this very issue

“We have only anecdotal evidence for understanding PFAS exposure sources for the U.S. general population,” she testified. “Major pathways of PFAS exposure include ingestion of food and drinking water, ingestion and inhalation of dust, and dermal uptake from personal care products and other sources. The relative importance of different exposure sources for the general population is unknown, impeding the development of effective risk mitigation strategies.”

What’s happening in Ohio

So where does Ohio fit in in all this? The answer to that is that its background in manufacturing, large cities dealing with huge drinking water systems, as well as being in the Great Lakes region make it a hotspot for PFAS issues in the United States. 

While many states have now restricted products the state can purchased based on PFAS content (like Michigan did in October, for example, and many states have set up tougher standards than the U.S. EPA has set for PFAS in their drinking water systems, Ohio has not yet acted.

The Ohio “Safe Drinking Water Act” (HB 497) — sponsored and filed last year by state representatives Allison Russo (D-Upper Arlington) and Mary Lightbody (D-Westerville) — requires stricter limits but has been stalled in the legislature. “The science on PFAS is certain,” Melanie Houston, the drinking water director for the Ohio Environmental Council wrote recently. “PFAS pose a significant public health risk to Ohioans and all Americans. By acting to set limits on PFAS pollution in drinking and surface water, we can protect more Ohioans from this harmful class of chemicals.”

Ohio is also a state that has a wide variety — and large number – of sites that have been thought to be contaminated by large amounts of PFAS chemicals. Recent studies have shown that more than 100 public water systems in the state are contaminated with the toxic “forever chemicals.” Hundreds of other sites — manufacturers and waste dumping grounds – are in the Ohio PFAS mix as well.

Lastly, Ohio’s location with waterfront on Lake Erie at its north, and the Ohio River at its south,  have put it where the PFAS chemicals can move quickly and get in drinking water systems. A total of six military bases with close proximity to the waters of these five lakes have been designated as “highly contaminated” with PFAS chemicals  by the U.S. Department of Defense. 

Because the Great Lakes water flows from west to east, Lake Erie has been found to have higher PFAS levels given its location in the system and its relative shallowness. For that reason, some Lake Erie trout and other fish tested have shown high PFAS levels as well.

One other part of the Ohio hotspot PFAS status — one that both environmental and legal groups are watching closely — is the $300 million lawsuit filed by the City of Dayton against the historic Wright-Patterson Air Force Bases for their role in PFAS contaminants that found their way from the military base to area drinking water. Both sides agree that some contamination took place, and are waiting for the courts to decide how severe the PFAS is in the drinking water, and whether the DOD must claim responsibility. How much they pay if the courts decide they bear such responsibility is very unclear at this point.

“The city absolutely did not want to file this lawsuit,” Dayton City Manager Shelley Dickstein said at the time the case was filed last spring. “We’ve invested more than four years trying to get (Wright-Patterson) and the DoD to agree to take steps to mitigate ongoing contamination coming from the base into the city’s Mad River Wellfield and the aquifer that supplies those wells.”

The Dayton case was moved in mid-August to a federal court in South Carolina to join hundreds of other cases in a multi-district court organization that is similar in structure to the opioid suits joined together in the past few years in federal court in Cleveland. Because of the size of both Dayton and Wright-Patterson, and the ongoing discussion that has gone on between the two for many years on this subject, many consider the Dayton PFAS lawsuit a bellwether case that sill set the standard for many others in the legal system.

The U.S. is entering a place where the courts could be the proving ground of figuring out how much PFAS has been put into the environment, how much healthcare problems it has caused, and if there is any legal responsibility from those factors. Government action is moving fast as well. Last week, the EPA submitted its proposal to the White House to put some PFAS chemicals in the “Superfund” status. Once a substance is classified as a “hazardous substance” under CERCLA, the EPA can force parties that it deems to be polluters to either cleanup the polluted site or reimburse the EPA for the full remediation of the contaminated site.

The National Law Review, which has been analyzing legal issues since 1888, weighed in on what this new status might mean: “EPA Regulating PFAS Contamination in US Water.”

“Now more than ever, the EPA is clearly on a path to regulate PFAS contamination in the country’s water, land and air. The EPA has also for the first time publicly stated when they expect such regulations to be enacted. These regulations will require states to act, as well (and some states may still enact stronger regulations than the EPA). Both the federal and the state level regulations will impact businesses and industries of many kinds, even if their contribution to drinking water contamination issues may seem on the surface to be de minimus.”

“In states that already have PFAS drinking water standards enacted, businesses and property owners have already seen local environmental agencies scrutinize possible sources of PFAS pollution much more closely than ever before, which has resulted in unexpected costs. Beyond drinking water, though, the EPA PFAS plan shows the EPA’s desire to take regulatory action well beyond just drinking water, and companies absolutely must begin preparing now for regulatory actions that will have significant financial impacts down the road.”