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Per- And Polyfluoroalkyl Substances (PFAS): One Size Does Not Fit All

Feb. 27, 2022
Regulating the numerous per- and polyfluoroalkyl chemicals in one category remains challenging

Per- and polyfluoroalkyl substances (PFAS) are getting a lot of attention in the United States and globally. Their varied chemical properties make the categorization of “PFAS” into a single category chemically and scientifically questionable. Increasingly, the ability to make distinctions among this large chemical category is challenging, yet failure to do so could be unwise. This article provides information on PFAS, and offers a few suggestions to keep in mind when making business decisions.

According to the U.S. government, some 4,000 PFAS exist, and are used to make fluoropolymer coatings and products that resist corrosion, grease, water, stains and heat. They are found in consumer and industrial applications, including non-stick coating in cookware, stain-resistant clothing, furniture, food packaging, adhesives, electrical insulation wire, tank linings and firefighting foams. The carbon-fluorine bond is the chemical backbone of PFAS and one of the shortest and strongest bonds known to exist. The bond makes PFAS highly resistant to breakdown, hence, their nickname “forever chemicals.” Human exposure to PFAS occurs through consuming PFAS-contaminated water and food and/or by using products that contain PFAS.

In 1999, the U.S. Centers for Disease Control and Prevention (CDC) measured at least 12 PFAS in human blood serum, indicating exposure to these chemicals in the U.S. population. It is believed PFAS contamination in humans and in the environment pervades the global. While the measurable presence of a substance in serum alone tells us nothing about whether that presence causes an adverse effect, it is clear people do not want PFAS to contaminate their bodily fluids, consumer products, or groundwater supplies.

A high-profile lawsuit about 20 years ago ignited the controversy. Plaintiffs, landowners, sued a certain chemical manufacturer of two PFAS — perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). They alleged injuries from contaminated drinking water from a PFOA manufacturing site in West Virginia. The court later certified the plaintiffs as a class; the parties settled in 2004. The settlement included an agreement to create a scientific panel to evaluate potential links between exposure to PFOA and PFOS and adverse human health effects. In 2011, the panel determined a probable link between PFAS exposure and certain diseases — including kidney and testicular cancer, and thyroid disease — and other adverse health effects. Litigation targets now include manufacturers that use or used PFAS in their products. Plaintiffs typically seek compensatory damages, medical monitoring, punitive damages, and injunctive relief.

The Biden Administration has significantly strengthened its commitment to addressing PFAS. It issued its “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021–2024” last October, outlining dozens of regulatory initiatives intended to address PFAS contamination. Congress has enacted several measures included in defense appropriation actions that resulted in regulatory actions implemented by the U.S. Environmental Protection Agency (EPA). Notably, the agency proposed last year a Toxic Substances Control Act reporting rule that requires “each person who has manufactured” a PFAS since January 2011, in any quantity, without exemptions, to report certain information to the EPA. Similar initiatives are emerging in the European Union, the United Kingdom, and elsewhere globally, but less aggressively.

Speciation Challenges

Advocates, armed by science, routinely note that PFAS are diverse and there is no one-size-fits-all approach to regulation. Each PFAS has a unique chemical identity and toxicological profile. Structural differences in carbon chain length, degree of fluorination, and chemical functional group will influence the substance’s mobility, fate, degradation in the environment, and toxicity in biological systems. While some grouping is scientifically supportable, PFAS are not mutually interchangeable. A commitment to science is essential to ensure recognition of PFAS with positive societal applications like life-saving medical devices or low-emission vehicles.

Suggestions to assist the PFAS decision-making process include:

• Make a chemist part of the business team. It is vital to include a chemist, preferably one familiar with this class of chemistry.
• Be careful in due diligence. Because the universe of PFAS is large and chemical-specific information lacking, not much information on a particular PFAS may exist. This is tricky in due diligence matters. A checklist approach (“Are PFAS part of the raw materials?” and similar broad questions/statements) is devoid of meaning in any scientific sense.
• Understand the applications. Knowing how PFAS are used and their end-of-life options is critical.

PFAS are not a one-size-fits-all issue. It will take a strong commitment to science to optimize their value while blunting the proliferation of substances that may pose unreasonable risk.

LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]

Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.

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