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Pennsylvania Toxic Tort Lawyers discuss EPA’S Action on PFOA: What it is and is not

Earlier this month, the U.S. Environmental Protection Agency made news when it announced a new “drinking water health advisory” for perfluorooctanoic acid (“PFOA”).  PFOA is the toxic chemical that has contaminated water in Hoosick Falls and Petersburg, New York and many other communities throughout the United States.

EPA’s action replaced its “interim” health advisory of 400 parts per trillion (“ppt”), and replaced it with a much lower level:  70 parts per trillion.  In EPA’s definition, this means that humans exposed to a lifetime of exposure to drinking water containing no more than 70 ppt of PFOA would have a “margin of protection” from adverse health effects.

On the one hand, EPA’s move comes as a welcome change.  As readers of this blog will be aware, the industrial makers and users of PFOA, due to corporate deceit and governmental inaction, enjoyed decades of under-regulation, a major cause of the current crisis, where PFOA is found in the blood of the majority of Americans, of all ages.  The new, lower advisory will help focus the attention of regulators, courts and consumers on the dangers of PFOA, and foster more vigilance regarding our domestic water supply.

At the same time, citizens should be aware of what the health advisory is not.

1.  It is not low enough.

Although EPA states that the new advisory is “conservative” and provides a margin of health safety even for “the most sensitive populations” (such as infants), the fact is that other agencies, with the same concerns and using similar methodology, have set guidelines at much lower levels.  For example, the New Jersey Department of Environmental Protection’s level is 40 ppt; Vermont’s Agency of Natural Resources sets it at 20 ppt.

 

2.  The Health Advisory is not a regulation or an enforceable federal standard.

The HA simply reflects EPA’s current thinking about the health effects of PFOA.  The 70 ppt level is not even enforceable under the federal Safe Drinking Water Act.  Indeed, “small” public water systems (serving fewer than 10,000 people), like those in Hoosick Falls and Petersburg, are still not required under federal law to test for and report levels of PFOA, despite the fact that it is now well established that the chemical causes illness at very low levels.

The non-regulatory nature of the health advisory is important in another way.  It should have no effect in determining what comprises “acceptable” levels of PFOA in water, and does not constitute a defense available to polluters sued in a court of law.  This is significant for many reasons, including the one we discuss next.

 

3.  70 ppt of PFOA in drinking water is not a “safe” level.

PFOA is a man-made chemical not found in nature.  It is always a pollutant in drinking water.  Although EPA’s formula for establishing the health advisory attempts to encompass factors such as exposure to PFOA from non-water sources, it cannot determine these “relative source contributions” with certainty.  A consumer drinking water with 70 ppt of PFOA may in fact be receiving a much larger dose of the chemical, if her exposure from food, air, surface water, soil  ̶  all of which have been contaminated with PFOA ̶  could be calculated.

Furthermore, the health advisory cannot take into effect the interaction of PFOA exposure with exposure to other chemicals or genetic predisposition to illness.

 

These and other concerns are partially reflected in EPA’s recognition that PFOA is dangerous in concentrations in the infinitesimal parts per trillion ranges.  Its belated action will be cold comfort to the thousands of New Yorkers and other Americans who have been exposed without their knowledge to levels many times higher than the agency’s “advisory.”  Those victims will have to continue to press their claims in court, and to pressure their representatives to eliminate exposure to PFOA and other toxins, once and for all.

By Gerald J. Williams, Esq.