In early 2021, local officials in the Boston suburb of Wayland, MA were confronted with a new weekly responsibility: distributing bottled water to roughly 1,400 homes per week.
Samples from the town’s Happy Hollow Well had revealed levels of perfluorooctane sulfonic acid, or PFOA, exceeding state limits imposed the previous year by the Massachusetts Department of Environmental Protection. The chemical found in Wayland’s water supply is one of six different variations of per-and-polyfluoroalkyls, or PFAS, that Massachusetts caps at 20 parts per trillion.
But Wayland was not alone. Of the 351 municipalities in Massachusetts, 240 have detected PFAS in at least one public water system since the fall of 2020. And 119 of those have reported test results that violate the 20 parts per trillion limit.
On April 10, 2024, the United States Environmental Protection Agency, or EPA, released its much-anticipated federal rule governing drinking water standards for certain PFAS variations, including PFOA.
The new federal limit? Four parts per trillion.
As Reuters reported in April, not everyone supports the new regulation. According to the news service, “The National Association of Manufacturers, the American Chemistry Council and the U.S. Chamber of Commerce said in comments last year to a draft version of the rule that it overstated the benefits of imposing the limits while underestimating costs.” Other industry groups, such as the National Association of State Departments of Agriculture, have contended such stringent limits would disproportionately burden rural regions.
Harvard Law alumnus James Pollack ’20 is a senior associate at the boutique environmental law firm Marten Law LLP. He and the firm represent drinking water systems polluted by emerging contaminants like PFAS, and he also maintains a regulatory practice supporting consumer product manufacturers. Pollack recently spoke with Harvard Law Today to discuss PFAS pollution, its effect on the legal industry, and its widespread impact across the U.S. and beyond. He says cities and towns are likely in for a wild ride.
Harvard Law Today: What are PFAS? What effect do they have on humans and the environment?
James Pollack: PFAS are a family of chemicals. There are somewhere between 3,000 to 13,000 different variations, so broad statements about the entire family can be difficult to make. But what really defines this ‘family’ is its underlying carbon-fluorine bond and characteristics shared across the family as a result of that uniquely strong bond.
PFAS are stain resistant, water resistant, heat resistant, and friction reducing — very few chemicals have these properties simultaneously, so PFAS have been used in an extremely wide variety of consumer products and industrial processes across the world.
Scientific research on ‘legacy PFAS’ — the oldest, most regulated types like PFOA and PFOS — has shown just how nasty these chemicals can be. Decades of medical studies have produced evidence that PFOA and PFOS are very disruptive to human biology, affecting a wide range of organs including the kidneys, liver, and thyroid. They have been associated with diabetes, reproductive harms, and many other conditions. It’s hard to think of a way that they don’t hurt you.
Recent studies on the health effects of PFAS helped inform a new rule that the EPA officially adopted about two weeks ago, which sets a maximum contaminant level of four parts per trillion. For context, that’s a concentration roughly the same as four drops of water in 20 Olympic-sized swimming pools. We’re talking really small quantities.
The goal of the new federal rule is essentially to hit nondetectable levels in drinking water. Just to give you an idea of what types of comparisons we should be making, that is the same level required for lead.
HLT: How prevalent are PFAS? How many people are impacted by the new rule?
Pollack: PFAS are highly mobile and uniquely persistent — that’s why they get the term ‘forever chemical.’ The EPA estimates that, under the new rule, the water for 105 million Americans currently violates the MCL for one or more of the regulated PFAS. We’re talking about a third of the country needing substantive changes to their water supplies. Keep in mind, Massachusetts is one of just 11 states that has a PFAS drinking water standard currently in place, and state standards are not as stringent as the new federal MCL.
Nationally, the impact will include costly water treatment infrastructure upgrades to implement granular activated carbon filtration or other treatment. In some service areas, it may involve providing bottled water like we’ve seen in some communities throughout the country. We have a client community outside of a military base that needed bottled water in the same fashion as they did in Flint, Michigan. It may mean changing water sources, like Cambridge did in 2022.
“It’s hard to think of a way that they don’t hurt you.”
Due to the pervasiveness of PFAS in the modern economy, they are found everywhere on earth. There’s rainwater that’s been found to violate the lifetime health advisory, there’s rainwater that violates the new drinking water standard. They’re finding PFAS on Everest and in polar bear brains. These are chemicals with unique properties that make them very mobile and extremely resilient on a geologic scale.
PFAS are also resilient in terms of human biology. Once they’re in your body, they can continue to accumulate as you become exposed to more and more of them. Your body doesn’t really have a great mechanism for getting rid of them.
I’ll borrow a term from Harvard [Law School] Professor Richard Lazarus, who used the phrase ‘super wicked problem’ to characterize the challenge of climate change. I think PFAS pollution is another modern super wicked problem. It presents a unique set of challenges that make it extremely difficult to solve, in the same way that climate change is uniquely challenging. It is all around us. It is slow moving. And it transcends jurisdictions that can directly influence it.
HLT: Where do PFAS come from? Who has been found responsible for PFAS contamination when a drinking water supply, for instance, has been polluted?
Pollack: A drinking water supply can become contaminated with PFAS by many different sources. These are artificial chemicals not found in nature, so any molecule of PFAS found in the wild was created by humans.
In terms of how they end up in the environment, it could be from industrial sources of pollution because PFAS are used in a wide variety of industrial applications. It could be from the manufacturing of PFAS chemicals themselves; some of the earliest lawsuits around water contamination focused on PFAS manufacturing sites. Here in the United States, one of the most famous PFAS cases — which was the basis for the 2019 film “Dark Waters” — involved contamination in West Virginia from PFAS manufacturing.
We’re also seeing landfills and landfill leachate as a source of contamination. The application of biosolids can lead to contamination because of contamination in treated wastewaters. These chemicals are really, really hard to remove from the environment. They can get through traditional treatment methods, so they end up in biosolids, which end up in fertilizer and soil.
HLT: What types of lawsuits have arisen out of PFAS drinking water contamination and human exposure?
Pollack: A lot of existing PFAS litigation is, naturally, around the sources of contamination. But we have seen a particular focus on industrial sources of PFAS pollution in an effort to try to clean up or contain PFAS discharge.
For example, there’s an MDL [multidistrict litigation] in South Carolina involving thousands of water districts that are working to both identify and remediate PFAS contamination in their water systems. An MDL is when multiple cases from different federal districts are consolidated and transferred to a single forum for pretrial proceedings, discovery, and resolution based on a similar set of facts and legal issues. It’s very similar to a class action that allows a defendant or group of defendants to consolidate cases from many different places into a single venue.
The MDL in South Carolina involves a specific source of PFAS contamination known as Aqueous Film Forming Foam [AFFF]. AFFF is firefighting foam made of PFAS that has historically been used to help smother especially dangerous oil and gas fires. Using AFFF at different types of sites, such as firefighting training facilities, airfields, and military bases, has corresponded with a considerable amount of PFAS contamination. So far, a lot of the focus has been on these hotspot areas to identify sources of PFAS contamination and then get the resources necessary to treat the water.
HLT: As you mentioned earlier, the new federal standard just announced on April 10 sets a limit for two of the most prevalent PFAS chemicals, PFOA and PFOS, at four parts per trillion. Once a drinking water source tests above that new EPA limit, what happens next?
Pollack: The remediation process varies depending on particular circumstances, especially if the state has its own regulations already in place. Generally speaking, the first order of business for the drinking water authority is its obligation to notify customers. They have to contact residents and inform them the samples have exceeded limits.
There is a requirement within this new regulation that drinking water authorities must comply with the new maximum contaminant levels by 2029. So, utilities will have five years to bring their drinking water within compliance. This is an extension from the original proposed timeline motivated by the scale and scope of the infrastructure investments required to achieve compliance.
To achieve compliance, a water district may use a variety of strategies such as installing filtration equipment or identifying a noncontaminated source of water [to] pull from instead. We’re talking about massive infrastructure projects with huge price tags; it’s a serious undertaking.
HLT: What does it take to implement treatment technology capable of removing PFAS from a drinking water supply?
Pollack: For these water systems, it’s a staggering cost. Our firm represents water systems across the country that are coming to terms with high levels of PFAS in their drinking water sources and are trying to figure out how to pay for the cleanup. Litigation is one source of funding for that because you don’t want to charge your customers for cleaning up something that isn’t their fault.
Estimates I’ve seen from people smarter than me say it’s going to cost in the billions of dollars a year to treat PFAS in drinking water. The installation of reverse osmosis filtration, or whatever treatment technology they decide to implement, is very expensive. Everyone is going to be trying to do it at once, too, which will likely make things especially challenging from a supply chain perspective.
For polluted sources, lowering levels enough to be considered compliant requires extremely careful treatment. The methods we use to eliminate other contaminants don’t necessarily work on PFAS, and suppliers have to install a much more intense treatment system with new technology. It’s going to be horrifyingly expensive.
“They’re finding PFAS on Everest and in polar bear brains. These are chemicals with unique properties that make them very mobile and extremely resilient on a geologic scale.”
HLT: How have courts viewed the chain of causation? How has liability been assigned between PFAS manufacturers, the industrial PFAS users, and the utilities distributing drinking water?
Pollack: Well, that’s the multi-billion dollar question that’s being litigated in forums like the MDL in South Carolina. In the absence of statutory frameworks, tort is like the original environmental law. The case in West Virginia was a toxic tort case. Using tort as a mechanism to try to remediate this contamination has been a solid option and will continue to be an option even with statutory frameworks in place. But those kinds of questions about liability are the subject of the litigation.
The chemical companies that manufactured most of the PFAS in circulation, like 3M and DuPont, have now entered into settlements with most water systems in the country. 3M settled for $10.5 to 12.5 billion, and DuPont settled for $1.185 billion. Those settlements have been approved in the MDL and the money is scheduled to be distributed over the next decade or so.
This was an interesting settlement because the MDL was originally focused on AFFF, but the settlements ultimately adopted ended up applying to all PFAS, not just AFFF. There’s also a proposed settlement with Tyco, an AFFF manufacturer.
HLT: One of the unique problems with PFAS is their prevalence, which also suggests a lot of businesses rely on them. From your experience advising on regulatory compliance, are there nonharmful alternatives that do the same thing PFAS chemicals are typically used for?
Pollack: Initially, there was a lot of hope for finding substitutes within the PFAS family. Early on, there was a transition from long chain PFAS to short chain PFAS. Unfortunately, some of those substitutions from legacy PFAS to ‘Gen X’ chemicals have proven to be disastrous and potentially may have even worse health effects than the originals. Since they are smaller, they are harder to filter out and can lead to much more contamination. As a replacement strategy, substitution within the PFAS family has certainly yielded mixed results at best.
The other strategy is to identify the specific qualities of PFAS that made it an attractive option and find alternatives outside the PFAS family. That’s where we’re seeing a lot of momentum from a regulatory perspective in the consumer product space. We’re seeing people undertaking the research necessary to see what else can do the things they used PFAS to do. In the outdoor apparel space, for instance, they can successfully replace PFAS from a water resistance perspective with relative ease. The challenge is, does that replacement also have oil resistance? What if you get some burrito grease on it? You immediately lose water resistance performance and that is a challenge in certain applications.
For some uses, in some industries, having just the water resistance or just the oil resistance is not a big deal. Do you need food packaging that is indefinitely stain resistant? Or are you okay with wax that maintains stain resistance up until you finish your pizza?
There are trade-offs in convenience and comfort that I think may require some explanation to consumers. Why is my nonstick pan suddenly sticking? Why is my rain jacket not quite as waterproof as it used to be? It’s still 95% of the way there, just not that extra little bit.
HLT: Are there any other recent developments worth noting from a legal standpoint? How do you see PFAS contamination disputes playing out going forward?
Pollack: Since setting the new maximum contaminant levels, the EPA has also added legacy PFAS pollution to the Superfund law, which has just as broad potential implications as the newly released drinking water limits. The Superfund law is the mechanism for dealing with the most contaminated sites in the country. Traditionally speaking, Superfund law applies in the classic example of a hazardous site where a bunch of oil or drums of chemicals have been found in a ravine somewhere.
The first step for classic sites is designating the polluted area as a Superfund site under the National Priorities List. With that designation comes a bunch of tools that allow you to clean it up. Then comes the hard work of studying the site, identifying what pollutants are present, measuring levels, and ultimately clean it up. But the first step is to identify a place, a location, that’s been contaminated.
Because it’s so ubiquitous, though, PFAS pollution presents unique logistic challenges under Superfund law. How do we limit the scope of what should fall under Superfund? What about drinking water systems, farmland, or airports? The EPA has issued an enforcement guidance document saying they’re going to use enforcement discretion to decide what is an appropriate time to use their enforcement authority under Superfund law. This is a potentially huge mechanism that can be used to obligate remediation and cleanup and it will be very interesting to see how the Superfund law gets used now that it is on the table.
The PFAS problem is really different from any other contaminant we have encountered in the past. Our legal system is designed to deal with individual chemicals. We build out a method of testing for the chemical, we identify where it is and then it goes through all of the different environmental laws and through tort suit.
The legal challenge with PFAS is that they’re actually a family of thousands of chemicals. No test method can identify all of these chemicals, let alone identify individual chemicals past a select few. And they’re used in everything. That’s what makes this a super wicked problem.
This interview has been edited for length and clarity.
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