Are environmental radicals and trial lawyers shifting their litigious energy from bisphenol A (BPA) hysteria, now that the CLARITY BPA consortium project has pretty much confirmed that the compound is safe to use, and moving to a new and potentially lucrative bogeyman? 

Apparently, the new chemicals in the crosshairs are polyfluoroalkyl substances (PFAS).  Since September 2018, Congress has held three hearings on the issue.  The first occurred on September 6, 2018 in the House Energy and Commerce Subcommittee on the Environment; the second took place on September 26, 2018 in the Senate Homeland Security & Governmental Affairs Committee, and the third took place on March 6, 2019 in the House Committee on Oversight and Reform.  A lot of Congress’s interest in PFAS centered around its use at military bases and presence in that environment.

Now, a fourth hearing will take place in Senate Environment and Public Works Committee on  March 28, 2019 entitled, “Examining the Federal Response to the Risks Associated with Per – and Polyfluoroalkyl Substances (PFAS).”

PFAS chemicals have been utilized for a long time.  According to the Agency for Toxic Substances and Disease Registry (ATSDR), “PFAS are man-made chemicals that have been used in industry and consumer products worldwide since the 1950s.  They have been used in non-stick cookware, water-repellent clothing, stain resistant fabrics and carpets, some cosmetics, some firefighting foams, and products that resist grease, water, and oil.”

There are many different kinds of PFAS and the ATSDR noted that the most commonly studied are  perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorohexane sulfonic acid (PFHxS), and perfluorononanoic acid (PFNA).   The PFOA and PFOS have been phased out of production and use in the U.S.

PFAS can migrate into the soil, water and the air and most do not breakdown, so they remain in the environment.  The question at hand is whether they are harmful and if so, at what levels?  ATSDR admits it is difficult to show that these substances directly cause adverse health conditions in humans.  The agency stated, “scientific studies have shown that exposure to some PFAS in the environment may be linked to harmful health effects in humans and animals.  More research is needed to better understand the health effects of PFAS exposure.”  There is some equivocation in that statement and ATSDR noted that many new PFAS may be less persistent in the environment.  Caution, conducting transparent research, and avoiding overreacting to the presence of these chemicals is critically important.  Many of the same arguments about PFAS sound eerily similar to those manufactured for the campaign against BPA.  Bad policy is too often built on faulty premises, shaky science, and flawed data. 

In his testimony before the March 6, 2019 Committee on Oversight and Reform hearing, Rep. Brian Fitzpatrick (R-Penn.) and co-chair of the Congressional PFAS Task Force, which is working to craft cleanup proposals at military bases noted that “regulating PFAS effectively and responsibly will not be easy.  It is essential that we implement the regulatory steps necessary to eliminate any health risk associated with these chemicals in our drinking water.  That is the priority.  However, there is a very real risk associated with over regulating these chemicals.  Setting a Maximum Contaminant Level (MCL) through the Safe Drinking Water Act lower than is necessary to ensure the safety of our drinking water would expose thousands of municipal water authorities to cost-prohibitive compliance requirements that would yield no benefit to the communities they service.  These compliance costs, which could total tens of billions of dollars, would be covered by loans that would ultimately end up getting paid off through increased rates charged to the customers, many of whom were never exposed to any health risks from PFAS.”

In a March 7, 2019 Legal New Lines article, Rich Trzupek, a chemist and environmental engineer also warned about a rush to over-regulation, and that much of the intensified focus on these chemicals is being pushed by trial lawyers who perhaps believe PFAS class-action lawsuits could be the new “mesothelioma,” a cancer that affects the lungs caused by the inhalation of asbestos fibers and led to the longest mass tort in U.S. history.

In the BPA case, the Food and Drug Administration had said for years that BPA is safe and a September 2018 National Public Radio column reported that government scientists presented evidence from the CLARITY project that the plastic additive is not a health threat.

Meanwhile, the Environmental Protection Agency (EPA), is being pressured by Congress to regulate PFAS.  On February 14, 2019 the EPA released its PFAS Action Plan.

Let’s hope cool, calm heads reign on addressing the science involved with PFAS and not hysteria.