In the past few years, contamination of drinking water supplies has been discovered in several small towns in northeastern upstate New York as well as in a nearby community in North Bennington, Vermont.
Thereafter, similar contamination was discovered near a plant in New Hampshire, on Cape Cod and near Newburgh, New York. The chemical involved in all three drinking water supplies is perfluorooctanic acid (PFOA). This chemical, or a closely related one known as PFOS, has turned up in the drinking water of multiple other localities.
What makes this discovery striking is that this contamination was discovered not through routine governmental required testing, but through the vigilance and diligence of concerned citizens.
In the case of North Bennington, the state of Vermont quickly became actively involved. While in New York, the state government was slow to react and when it did, performed rather unevenly, causing residents to consume contaminated water for many months after the contamination was discovered.
Faraci Lange is handling multiple cases in Hoosick Falls and Petersburgh, the two upstate New York towns where the contamination was discovered, and where efforts are now underway to deal with the problem.
What is PFOA?
PFOA is a man-made chemical not found in nature. It is an eight carbon chain with each but the last carbon atom bonded to fluorine atoms. The last carbon atom is bonded to an oxygen atom and an OH group, making it an acid. However, the acid form of this molecule is not typically how it is used in manufacturing.
Ammonium perfluorooctanoate (APFO), which is the initial form of the acid, is used as a surfactant in the production of PTFE coated materials including Teflon® cooking surfaces and various waterproof and stain-proof fabrics used for carpeting, upholstery, clothing, tapes and various other uses.
As a surfactant, APFO is added to PTFE dispersions to help the chemical mixture spread evenly on whatever surface it is being applied. The object is then heated causing the PTFE to adhere to the surface and the APFO to vaporize and discharge into the air.
APFO was invented, manufactured and sold by the 3M Corporation until approximately 2001. 3M became concerned about the health hazards of APFO and decided to stop manufacturing the chemical. Thereafter, DuPont, which has been one of the largest customers of 3M in purchasing the chemical to make its Teflon® products, began to manufacture the chemical for its own use and for sale to other manufactures of PTFE resins.
In 2006, due to human health concerns, the United States Environmental Protection Agency initiated the 2010/2015 PFOA Stewardship Program. Eight major companies committed to reduce facility emissions and product contents of PFOA and related chemicals (including PFOS) on a global basis by 95% no later than 2010 and to work toward eliminating emissions and product content of these chemicals by 2015. To a large extent this goal was accomplished, but the chemicals substituted in their places are very similar man-made multiple carbon chain molecules with untested and unknown health effects.
How does PFOA get into drinking water?
When the vaporized APFO cools after being exhausted out of the stacks of the manufacturing facility, it forms particulate matter that is carried by the air until it settles to the ground or is washed out of the air by precipitation. Once it reaches the soil, it loses the NH4 grouping and converts to the acid form.
PFOA then readily dissolves into water and washes down into the groundwater. It also dissolves into surface waters out of the air and the remnants of the original dispersion containing APFO are frequently discharged in liquid form by these same manufacturing facilities into both ground and surface waters near the facilities.
What are the health hazards of PFOA?
PFOA and a related chemical PFOS, which is another eight carbon manmade molecule used in foam fire retardants, are particularly troublesome because they are both highly resistant to breakdown in the environment. Once they convert to the acid form, there is nothing in nature that breaks them down, and they will persist for decades or centuries.
Equally problematic is their persistence once they are inhaled, ingested or absorbed into the human body. Studies have shown it takes two to seven years for the body to rid itself of half of the PFOA contained in blood serum. Thus, where there is long-term exposure and a buildup of these chemicals in the bloodstream, it can take a lifetime to reduce the levels.
Unfortunately, due to the persistence and ubiquity of these chemicals, even though they are not found in nature, they are found in all of us at low levels, usually determined to be about 2 parts per billion. People who consume water contaminated with PFOA, like the residents of Hoosick Falls and Petersburgh, can have levels hundreds of times above those background levels.
Studies of workers exposed to PFOA have shown multiple possible negative health effects for years. Both 3M and DuPont did internal unpublished worker studies which suggested multiple different adverse health effects, forming the basis of 3M stopping its production of the chemical. However, the most comprehensive study of PFOA health effects resulted from the 2006 settlement of a lawsuit brought against DuPont for contaminating the drinking water supply of approximately 70,000 people living in communities along the Ohio River in West Virginia and Ohio. DuPont’s Washington Works plant located in Parkersburg, WV released PFOA, which was referred to as C8, into the air and into the Ohio River causing this contamination.
A lawsuit brought on behalf of citizens in the affected communities resulted in a massive study of the health effects of this chemical funded by DuPont as a condition of the settlement. Almost 70,000 people participated by completing surveys of their health histories and being tested for PFOA in their bloodstreams. Pursuant to the settlement, the C8 Science Panel was selected by attorneys for DuPont and the plaintiffs and consisted of three nationally recognized epidemiologists. They were tasked with reviewing the data generated from the study and determining whether there were any illnesses in this population that were likely related to the PFOA exposures.
The panel concluded that PFOA created an elevated risk of kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, elevated liver enzymes, elevated uric acid levels, high cholesterol and pregnancy induced hypertension, and that in virtually all cases, the risk increased with level of exposure, which is referred to as a dose-response. Follow up studies found evidence of associations to other diseases including ovarian cancer.
Federal and State Regulation of PFOA
PFOA and PFOS are among thousands of man-made chemicals that were unregulated by either the state or federal governments until recently.
In 2009, the EPA identified PFOA as an emerging contaminant of concern and issued a provisional health advisory stating that short term (weeks to months) exposure to PFOA-contaminated water at a concentration of 400 parts per trillion (ppt) can cause human health effects. The EPA also advised at that time that long-term exposure to PFOS-contaminated water at a concentration of 200 parts per trillion (ppt) can cause human health effects.
Following EPA’s action in 2009, several states including Minnesota, Maine and New Jersey set drinking water limits for PFOA below EPA’s short term exposure level of 400 ppt. By 2016, EPA issued a health advisory warning that drinking water should not contain more than 70 ppt. Other states, including Vermont, set even lower limits, with Vermont setting a limit of 20 ppt. Leading scientists in the field have concluded that even these limits are too high and the standard should be set at 1 ppt.
Levels discovered in Hoosick Falls and Petersburgh were as high as 600 to several thousand parts per trillion. Water filtration systems have been installed on the public water supply after residents went months only drinking bottled water. Individual point of entry treatment systems (POET) were installed on hundreds of private wells in the area. A long-term source of clean drinking water is being sought for both communities, but this will not be an easy task.
Civil Lawsuits against Polluters
Class action lawsuits are now underway in state and federal courts on behalf of the citizens of Hoosick Falls and Petersburgh, seeking recoveries from the companies responsible for the contamination.
These suits are claiming property devaluation damages and are also seeking to establish a medical surveillance program to screen the exposed population for the diseases associated with PFOA exposure to promote early diagnosis and treatment.
Faraci Lange is lead counsel in those cases. In addition, several cases have been filed by residents exposed to PFOA who have been diagnosed with illnesses associated with PFOA exposure, and more will be filed in the coming months.
Stephen G. Schwarz, Managing Partner of Faraci Lange, is representing plaintiffs in the Hoosick Falls water contamination class action as Co-Lead Counsel with Hadley Matarazzo.