Published in Michigan Environmental Law Journal, Fall 2017, Vol. 35, No. 2, Issue 103 [view full issue].
Cite: 35 Mich Env Law J 2 (2017)
Perfluoroalkyl Compounds: An Emerging Contaminant in Michigan
by Richard Baron, Founding Partner, Foley Baron Metzger Juip PLLC
Benjamin Fruchey, Associate Principal, Foley Baron Metzger Juip PLLC
Nicholas Andrew, Associate, Foley Baron Metzger Juip PLLC
Most contaminants share a common trait: stop their release and the ecosystem will dilute them, neutralize them, or degrade them until they are no longer a threat to human health or the environment. Yet some compounds do not seem to fit this mold. Specifically, greater attention and scrutiny is now being focused on the potential harmful effects of poly- and perfluoroalkyl substances (PFASs), compounds that appear to be highly mobile, easily enter the human body, and are persistent in the environment. PFASs are man-made, so there are no natural sources in the environment, yet they have been detected in the Arctic Circle and in other remote locations such as open ocean waters, indicating their ability to travel via wind and water. Exposure to PFASs is already so widespread that they were detected in 95–100% of human blood samples in 1999–2000 and 2003–2004. And due to the strength of PFASs' bonds, they are very stable in the environment, low in volatility, and are resistant to biodegradation, photoxidation, direct photolysis, and hydrolysis. This combination of factors could create an enormous problem for the scientific and medical communities if it is confirmed that PFASs increase the likelihood of certain medical conditions in humans, even as new production of these compounds is waning worldwide. Furthermore, the discovery of multiple sites in Michigan where PFASs may have contaminated the soil and groundwater of local communities has thrust this issue into the limelight in Michigan specifically, while regulators at the State and federal level move slowly to develop a response.
Are PFASs Everywhere?
PFASs are a subset of perfluorinated chemicals, a broad group of compounds used to make products more resistant to stains and water damage. Industrial quantities of PFASs, the two most popular being perfluorooctanoic acid (PFOA), used to make DuPont's Teflon, and perfluorooctane sulfonate (PFOS), used to make 3M's Scotchgard, have been manufactured since the 1940s. PFASs have been used in fire-fighting foams (for suppressing gas fires), in nonstick pans, Gore-Tex and other waterproof clothing, electrical wire casings, fire and chemical resistant tubing, plumbing thread seal tape, eye glasses, tennis rackets, stain-proof coatings for carpets and furniture, fast food wrappers, microwave popcorn bags, bicycle lubricants, satellite components, ski wax, car seats, tents, shoes, and pizza boxes, as well as in the aerospace, automotive, building and construction, and electronics industries, as a friction reducer. The result of this massive insertion of PFASs into everyday products has led to widespread human exposure. Once present, the most commonly used PFASs remain in the human body for many years; elimination half-times in humans are 3.8 years and 5.4 years for PFOA and PFOS, respectively.
PFASs' Pathways to the Human Body
Food and water ingestion is the primary source of human exposure to PFASs. Another common exposure point, especially for children, is PFAS-treated carpets and upholstery through hand-to- mouth transfer. People working where PFASs are made or used are often exposed to higher levels of these substances than the general population; these persons include chemical plant workers, carpet layers and certain firefighters. Some communities near facilities where PFASs previously were manufactured had high levels of these substances in drinking water supplies, and this can lead to high rates of ingestion for these populations. Similarly, the former use of PFASs in fire-fighting foams, especially on military bases, has resulted in the release of these substances to soil and groundwater. In Michigan, five sites have already been identified as contaminating local drinking water: four different air force installations and a Wolverine (boots) World Wide tannery in Belmont. At Wurtsmith Air Force base in Oscoda, sampling by the Michigan Department of Environmental Quality and the US Air Force identified elevated levels of PFAS contamination in some locally caught fish and drinking water wells which has been traced directly to firefighting foams used at the Wurtsmith base. Sampling by the Michigan National Guard near Camp Grayling Airfield outside Grayling identified roughly 100 private wells that may contain high levels of PFASs due to the runoff of firefighting foams; sparking concern that other air force bases in the State may have the same issues. At the Wolverine tannery, the Rogue River and local groundwater have shown the presence of PFASs due not to fire-fighting foam, but instead from a form of Scotchgard that was used to waterproof the company's boots for decades.
The (Potential) Danger of PFASs
There have been no definitive studies linking the presence of PFASs in the body to any specific disease or disorder, but some results from testing on animals have raised concern among government agencies and industry and have led to a spate of lawsuits, most unresolved, relating to PFAS exposure. In animal studies, some PFASs disrupt endocrine activity, reduce immune function, cause adverse effects to the liver, pancreas, and thyroid, create changes to blood cholesterol and triglyceride levels, and cause developmental problems in offspring exposed in the womb. In particular, the fact that PFASs could be "endocrine disrupters" is a concern, since other similar disrupters, such as the pesticide DDT, have been shown to cause cancers and birth defects in humans. A number of studies have examined the carcinogenicity of PFASs and the health effects they could create in humans; data from some human studies suggests that PFASs may also have effects on human health, while other studies have failed to find conclusive links.
How to Eliminate PFASs
PFASs can be disposed of by separating solid waste from liquid waste, and then disposing of the dry PFAS solids in an approved industrial solid waste landfill or incinerating them at temperatures of 800°C. Alternatively, public water systems can treat PFAS-impacted water with activated carbon or reverse osmosis systems to remove PFASs from drinking water. In some communities, entities have provided bottled water to consumers while steps to reduce or remove PFASs from drinking water or to establish a new water supply are completed. As a general rule, however, the presence of PFASs in air or water goes untreated unless localized land use and sampling verify that there are very high levels present in the community. In Michigan, the response to exposure sites largely has been to limit exposure from private residential wells at the source rather than clean up the contamination as a whole. Most current efforts to limit exposure are aimed at the installation of at-the-tap filter systems and provision of bottled water in homes.
Regulation (of lack thereof) of PFASs
Today, PFASs are considered "emerging contaminants" and are not subject to federal regulation. This is because under the Safe Drinking Water Act it takes years of study to develop enough data on toxicity for agencies like the United States Environmental Protection Agency (EPA) to enact regulations, and because there are so many poly- and perfluoroalkyl variants, it is difficult to assess the risk potential across the entire chemical class. In 2012, EPA listed a number of perfluoroalkyl compounds, including prominent PFASs such as PFOA and PFOS, as suspected drinking water contaminants. In May 2016, EPA published health advisory guidelines for PFOS and PFOA that suggest prolonged exposure over 70 parts-per-trillion can cause health problems; this is equal to about a drop of water in 20 Olympic-sized swimming pools. Since 2013, an EPA-mandated testing program has detected elevated levels of the chemicals in 52 public water systems across the country. In 19 states plus two Pacific island territories, those systems had at least one sample contaminated with either PFOA or PFOS at an amount greater than the new lifetime health advisory level. In Michigan, the Department of Health and Human Services (MDHHS) has set non-enforceable exposure thresholds of 11 parts-per-trillion for PFOS and 42 parts-per-trillion for PFOA; levels which two larger water systems in the State have supply to become contaminated. The Department of Defense, who is responsible for the four airfields cited as sources of PFAS contamination, has thus far pleaded immunity from such State laws, and will likely await to be compelled by federal laws or regulations not yet in existence.
Chemical manufacturers have recently become responsive to concerns about PFASs; and have begun phase-outs of those compounds. In 2006, eight major companies agreed to participate in EPA's voluntary PFOA Stewardship Program, which required commitments to reduce facility emissions and production of PFOA and related chemicals, and to work toward the eventual elimination of these substances. The chemical industry has responded to these phase-outs by shifting production to next-generation perfluoroalkyl compounds with smaller carbon chains. Small-chain compounds, while still persistent in the environment, are generally less toxic and less bio-accumulative than PFASs. Although recent monitoring data continues to show widespread human exposure, the United States Department of Health and Human Services has observed that the levels of PFASs in Americans' blood appear to be declining, which demonstrates that these changes in chemical manufacturing may be having a positive effect on this potential problem. This will not, however, reduce the concerns about high-level localized PFAS exposure that adjacent communities may have to contaminated sites, such as the airfields and tanneries in Michigan.
 Agency for Toxic Substances and Disease Registry, Sources of Exposure to PFAS, (updated 2016) (accessed November 5, 2017).
 Agency for Toxic Substances and Disease Registry, Draft Toxicological Profile for Perfluoroalkyls, p. 24 (accessed November 5, 2017).
 Id. at 31.
 National Institute of Environmental Health Sciences, Perfluorinated Chemicals (PFCs), p. 1 (accessed November 5, 2017).
 Garret Ellison, MLive, What are PFCs and why should you care?, (accessed November 5, 2017); see also Bill Walker and David Andrews, Environmental Working Group, Drinking Water for 5.2 Million People Tainted by Unsafe Levels of PFCs, (accessed November 5, 2017).
 Supra n. 2, Draft Toxicological Profile for Perfluoroalkyls, p. 372; supra n. 4, Perfluorinated Chemicals (PFCs), p. 1.
 Supra n. 2, Draft Toxicological Profile for Perfluoroalkyls, p. 33.
 Id. at 437.
 Id. at 438-439.
 Id. at 25; 32-33.
 United States Environmental Protection Agency, FACT SHEET PFOA & PFOS Drinking Water Health Advisories, pp. 1-3, (accessed November 5, 2017).
 Garret Ellison, MLive, Toxic chemical foam plume found at National Guard base in Alpena, (accessed November 5, 2017).
 Supra n. 5, What are PFCs and why should you care?
 Garret Ellison, MLive, Toxic chemical foam plume discovered at Camp Grayling airfield, (accessed November 5, 2017).
 Garret Ellison, MLive, Scotchgard chemical ails fish where tannery scraps litter river, (accessed November 5, 2017).
 Sharon Lerner, The Intercept, The Teflon Toxin, (accessed November 5, 2017).
 Supra n. 4, Perfluorinated Chemicals (PFCs), p. 2.
 Supra n. 2, Draft Toxicological Profile for Perfluoroalkyls, pp. 33-37; supra n. 4, Perfluorinated Chemicals (PFCs), p. 2.
 Supra n. 2, Draft Toxicological Profile for Perfluoroalkyls, pp. 372-373.
 American Water Works Association, Perfluorinated Compounds: Treatment and Removal, (accessed November 5, 2017).
 Garret Ellison, MLive, Toxic chemicals pollute drinking water near old tannery dump, (accessed November 5, 2017).
 Supra n. 11, FACT SHEET PFOA & PFOS Drinking Water Health Advisories, p. 4.
 Id. at 2.
 Supra n. 5, Drinking Water for 5.2 Million People Tainted by Unsafe Levels of PFCs.
 Garret Ellison, MLive, Michigan law targets Oscoda water, but will the military follow it?, (accessed November 5, 2017).
 Garret Ellison, MLive, Air Force thumbs its nose at new Michigan safe water law, (accessed November 5, 2017).
 Supra n. 2, Draft Toxicological Profile for Perfluoroalkyls, pp. 375-385.
 Environmental Working Group, Poisoned Legacy: Where Consumers Encounter PFCs Today, (accessed November 5, 2017).
 Supra n. 2, Draft Toxicological Profile for Perfluoroalkyls, pp. 25; 391.
 Supra n. 11, FACT SHEET PFOA & PFOS Drinking Water Health Advisories, p. 1.