Perfluorooctanoic Acid (PFOA)

Perfluorooctanoic acid (PFOA) is a manufactured perfluorochemical, a member of a group of chemicals used in making products that resist heat, oil, stains, grease and water. Also, PFOAs are a byproduct of the production of fluoropolymer coatings and, until 2002, PFOA was used in the manufacture of nonstick surfaces such as Teflon. PFOA persists in the environment; it has been found in air, soil and water, animals and humans. While there is disagreement on the exact effects of PFOA exposure, many scientists maintain that PFOA stays in the human body for years and that exposure has been associated with health problems.

The EPA has offered health advisories with respect to PFOAs but not set firm policies regarding limits, cleanups, or alternative uses for the chemical. The EPA has levied fines on manufacturers for PFOA pollution and is working with the industry to eliminate the production of the chemical.

Litigation against PFOA manufacturers has been brought by both governmental agencies and private parties over illnesses allegedly caused by exposure to the chemical, and over the contamination of the water supply. Damage awards have been significant and because general liability policies are unlikely to cover PFOA-based liabilities, commercial insurers advise that environmental liability insurance be purchased separately.

Background

While the full long-term effects of PFOA on humans are not known, some studies have pointed to liver damage and an increased cancer risk. Although PFOA was first detected in drinking water about two decades ago, federal response to the pollution has been slow, for example, no enforceable contamination limits have been set as of the date of this publication. In 2016, the EPA established the health advisory levels for PFOA at 70 parts per trillion for drinking water, but advisory limits are not used for the enforcement of cleanups or to prevent the further use of products containing the subject class of chemicals.

In 2004, the Centers for Disease Control and Prevention (CDC) measured PFOA in the blood of 2094 individuals over age 12. The study found PFOA in the serum of nearly all the subjects tested, leading to the conclusion that PFOA exposure is widespread in the population. The CDC stated, however, that the existence of PFOA in the bloodstream does not imply an adverse health effect. Still, PFOA has continued to be the subject of governmental interest, for example, the EPA and the Department of Justice have fined certain manufacturers for the inadequate reporting of PFOA’s possible adverse effects.

Injuries and Damages

While the effect on human exposure to low levels of PFOA in the environment is not fully known, multiple studies of data gathered from lab animals and large groups of people have shown that high levels of exposure may cause a number of ills, including liver damage, kidney and testicular cancers, thyroid disease, a variety of fetal problems, high blood pressure in women, changes in cholesterol levels and colitis. In 2006, the Science Advisory Board office of the EPA recommended that PFOA be considered as a possible human carcinogen and scientists on the panel recommended further study.

Legislation and Regulation

The EPA has issued rules concerning PFOA- related chemicals for many years. In cooperation with eight major chemical manufacturers, the EPA implemented a “global stewardship program” with the goal of eliminating the chemicals from products and emissions by 2015. That goal has not been fully achieved. The EPA has proposed several rules that require manufacturers and importers of PFOA-related chemicals to notify it about planned PFOA use under certain circumstances, such as at least 90 days before starting or resuming PFOA use in a product. The EPA uses its “New Chemicals” program to review alternatives for PFOA and related chemicals before they enter the marketplace.

Europe has taken legislative action to restrict the use of PFOA-related chemicals, but the proposals have been met with the criticism that they will not accomplish the stated goals.

Liability and Insurance

Although precise PFOA health hazards are not well-established, liability issues might include violations of state consumer protection statutes, fraud, fraudulent concealment or negligence. Because general liability policies are unlikely to cover PFOA-based liabilities, commercial insurers advise that environmental liability insurance be purchased separately.

Litigation

Regulatory and privately brought legal actions regarding PFOA are becoming more frequent.

E. I. du Pont de Nemours and Company (DuPont)
DuPont’s Washington Works facility located on the Ohio River in West Virginia had been using PFOA since the 1950s but failed to report to the EPA for almost two decades that the chemical had caused possible adverse health effects to some of its employees. Once informed, the EPA issued several orders over the years to lower the PFOA screening level in affected water sources. In response to EPA’s administrative complaints filed against it, DuPont paid penalties of more than $10 million and agreed to conduct supplemental environmental projects that were expected to cost more than $6 million.

Individuals living near DuPont’s Washington Works plant filed a class action in 2001 (Leach v. E.I. DuPont de Nemours & Co., No. 01-C-698 (Wood County W. Va. Cir. Ct.)). The case settled under an agreement that DuPont would create a scientific panel to study PFOA exposure and pay for health monitoring and education programs. The researchers found a probable link between the chemical and six specific illnesses. Plaintiffs with one of the identified illnesses could then file individual claims against DuPont; also, some individuals alleged that PFOA caused their cancers. Approximately 3,500 claims were filed against DuPont and the cases were consolidated into a multidistrict litigation (MDL) in Ohio federal court in 2013.

Awards against DuPont in the Ohio MDL were significant. A 2015 award to a woman who suffered kidney cancer was in the amount of $1.6 million (Bartlett v. DuPont Co., No. 13-cv-170 (S.D. Ohio Oct. 7, 2015)); in 2016 the court awarded $5.6 million in a testicular cancer case (Freeman v. E.I. du Pont de Nemours and Co., No. 13-cv-1103 (S.D. Ohio July 8, 2016)). In 2017 another man with testicular cancer was awarded $12.5 million (In re DuPont C-8 Personal Injury Litigation, No. 13-md-2433, (S.D. Ohio Jan. 5, 2017)).

In another suit filed against DuPont, a nonprofit water supplier depended on water from sources contaminated by the Washington Works plant. (Little Hocking v. E.I. Du Pont Nemours & Co., 91 F. Supp. 3d 940 (S.D. Ohio 2015)). The litigation was complex, especially the regulatory, standing and definitional issues. The case settled in 2015.

3M Company
Environmental contamination suits have been filed against 3M Company. In 2016, 3M became involved in litigation over allegations that PFOA from its Tennessee River facility had contaminated surface and ground water, although the company was already taking ongoing remedial action under an EPA-approved agreement. (Tenn. Riverkeeper, Inc. v. 3M Co., No. 5:16-CV-01029-AKK (N.D. Ala., filed June 23, 2016)). Plaintiffs in another water contamination suit against 3M contended that the manufacturing of carpet with waterproofing compounds which resisted traditional methods of wastewater treatment fouled the available drinking water. (Water Works and Sewer Board of the Town of Centre v. 3M et al, 13-CV-2017-900049, (Circuit Court of Cherokee County, Alabama (filed May 15, 2017)).

Other disputes involve assertions that PFOA contamination has come from non-industrial sources such as specific military bases in Pennsylvania and New Jersey.

Future Outlook

More research is needed to address the disagreements about the actual adverse effects of PFOA on humans and the environment, but it is clear that expensive governmental and private litigation will continue, serving to put insurers on notice to monitor this area.

In the News

2020

• US moves to exempt companies from reporting harmful chemical releases - Emily Holden, The Guardian (06/24/2020)
  Federal regulators are crafting an exemption for polluters releasing harmful perfluorinated chemicals (PFAS) into the environment in a way that environmental advocates say circumvents a new law meant to address widespread contamination.

2019

• Perfluorinated Chemicals: A Rapidly Evolving Regulatory And Legal Risk Issue For Businesses - Jane Luxton, Amanda L. Tharpe, & William Walsh, Mondaq (05/06/2019)
  A once obscure group of chemicals known as perfluorinated chemical substances (PFAS) have gripped national headlines in recent months, due to increasing concerns over potential health risks.

2018

• Judge rules 3M will remain a party in Wolverine PFAS litigation - John Tunison, mlive.com (12/28/2018)
  A judge has ruled that manufacturing giant 3M will remain a party in litigation over PFAS contamination allegedly caused by Wolverine World Wide. . . . 3M on Dec. 21 asked Kent County Circuit Court Judge George Quist to exclude it from a lawsuit filed by numerous Kent County residents whose groundwater is contaminated with PFAS chemicals. . . . Quist ruled Friday, Dec. 28 that 3M, which invented PFAS chemistry and manufactured the Scotchguard used by Wolverine World Wide on shoes, must remain as a defendant. . . . In a written opinion, Quist said he expects to hear further motions from 3M when discovery -- a legal term for evidence gathering -- is complete in the lawsuit process
• 3M once tested Wolverine tannery for PFAS exposure - Garret Ellison, Grand Rapids News (08/13/2018)
  Minnesota manufacturing giant 3M tested water samples and sent specialists to analyze fluorochemical exposure at the former Wolverine World Wide tannery in Rockford, according to new filings by Michigan residents suing over drinking water polluted by chemical dumping in Kent County. . . . In August 1999, an "industrial hygienist" visited the former leather tannery amid growing concerns related to per- and polyfluoroalkyl substances, or PFAS, in 3M Scotchgard that Wolverine workers used in mass quantity at the shoe leather complex. . . . The visit -- part of substantial PFAS-related discussion between 3M and Wolverine -- is outlined in amended lawsuits filed Monday, Aug. 13, in Kent County 17th Circuit Court by attorneys for Varnum Law, which represent more than 400 people suing Wolverine over contamination caused by tannery waste dumping.
• Blocked report drops PFAS safety level into single digits - Garret Ellison, Michigan News (06/21/2018)
  A draft study of the risk posed by exposure to per- and polyfluoroalkyl substances, or PFAS, that was dubbed a "public relations nightmare" by the White House shows new safety levels for the chemicals seven to ten times lower than current thresholds. . . . The new toxicological profiles released June 20 by the federal Agency for Toxic Substances and Disease Registry (ATSDR), comparatively drop the level at which no harm would be expected from exposure to people into the single digit parts-per-trillion (ppt) range. . . . According to environmental chemists, the proposed ATSDR "minimum risk levels" or MRLs, translate roughly to 7-ppt for PFOS and 11-ppt for PFOA -- the two PFAS compounds which the state of Michigan has established cleanup standards for groundwater that people drink. . . . The U.S. Environmental Protection Agency health advisory level for PFOS and PFOA is a combined 70-ppt, a level some researchers call inadequate to protect public health. . . .Lower safety levels could have significant impact on response and cleanup efforts at PFAS sites nationwide. Regulators have used the EPA level as a de-facto standard in the absence of enforceable rules on acceptable PFAS levels in drinking water, lakes and rivers
• Chemicals in packaging, carpets and non-stick pans 'may contribute to obesity' - Ian Sample, The Guardian (02/13/2018)
  Chemicals used to make non-stick pots and pans, stain-resistant carpets, and food packaging may contribute to high levels of obesity by disrupting the body’s ability to burn calories, scientists say. . . . Researchers at Harvard University examined the effects of compounds called perfluoroalkyl substances (PFASs), which have already raised concerns among some health experts after animal experiments and other studies linked them to cancer, high cholesterol and immune problems. . . . In the latest work, Qi Sun, a nutritionist who specialises in the risk factors for diabetes, obesity, and cardiovascular disease, analysed records for 621 overweight and obese people who spent six months dieting. All were part of a clinical trial run in the 2000s to test the effectiveness of different types of diets. . . . As expected, those on the trial lost weight – on average 6.4kg over the six months of the diet – and then regained nearly half of that in the following 18 months. But Sun found that those who gained the most weight after dieting had the highest blood levels of PFAS chemicals, with the effects more pronounced in women.
• Ohio sues DuPont over C8 contamination concerns - Marion Renault, The Columbus Dispatch (02/08/2018)
  Ohio Attorney General Mike DeWine has filed suit against chemical company DuPont, alleging it released toxic perfluorooctanoic acid (PFOA) or C8, for decades from its Washington Works plant on the Ohio River — despite knowing potential health and environmental risks. . . . The lawsuit, filed Thursday, calls for DuPont to fund an investigation into PFOA contamination as well as pay for any necessary cleanup of the man-made chemical, which has been linked to various health risks, including kidney and testicular cancer, thyroid disease, low birth weight and high cholesterol. . . .“We think Ohioans have the right to enjoy the state’s natural resources without interacting with these chemicals,” said Dan Tierney, a spokesman with the Attorney General’s office. . . . A DuPont spokesperson declined to comment, saying the company had not yet been served with the lawsuit.

2017

• Chemours, Dupont Agree to Nearly $617M Settlement of PFOA Claims - Doug Rainey, Delaware Business Now (02/13/2017)
  DuPont, and plaintiffs’ attorneys in the Ohio have agreed to a settlement in principle on 3,550 lawsuits related to PFOA personal injury claims arising from environmental releases from the Washington Works plant in West Virginia. The total settlement is $670.7 million in cash, half of which will be paid by current plant owner Chemours and half by DuPont.
• Researchers find 'another reason' to avoid fast food: Chemicals in the packaging - Maura Judkis, Washington Post (02/01/2017)
  Chemicals that have been associated with cancer and other health problems have been found in some fast-food packaging, according to a new study. Researchers found the substances, which can leach into food, in sandwich and dessert wrapper and paperboard containers…Schaider and her team tested wrapper from 27 fast-food companies, including McDonald’s, Wendy’s, Starbucks and Panera bread. One-third of all samples tested contained detectable concentrations of fluorine, a marker for PFASs.

2016

• DuPont Under Increased Pressure From C8 Cases - Andy Szal , Chem.Info (10/26/2016)
  The judge overseeing thousands of chemical exposure complaints against DuPont appears to be growing impatient with the pace of the cases. The News Journal reports that U.S. District Chief Judge Edmund Sargus scheduled 10 cases within a three-month window next year, and legal experts told the paper that the accelerated caseload could be an effort to push DuPont to settle the claims. The cases are centered on DuPont's use of perfluorooctanoic acid, also known as PFOA or C8, to make Teflon non-stick coating for decades at its plant in Parkersburg, W.Va…More than 3,500 plaintiffs affected by one of several C8-linked maladies subsequently filed personal-injury lawsuits against the company, which were consolidated before Sargus in the Southern District of Ohio federal court. Since those cases began last fall, only three have been resolved, The News Journal notes. The pace was slated to increase to 40 cases per year next year, but DuPont also showed a willingness to fight verdicts on appeal.

2015

• Chemicals In Your Popcorn? - Nicholas Kristof, The New York Times (06/04/2015)
  What do a pizza box, a polar bear and you have in common? All carry a kind of industrial toxicant called poly- and perfluoroalkyl substances, or PFASs, that do two things: They make life convenient, and they also appear to increase the risk of cancer. 

2011

• C8 panel says it has found cancer death rise at DuPont - Ken Ward, Jr., wvgazette.com (07/19/2011)
  Workers at DuPont Co.'s Wood County plant who were exposed to the chemical C8 were more likely to die from kidney cancer and other kidney diseases, according to the latest findings from a three-scientist panel studying C8's potential health effects.
• Dupont Is Sued Over New Herbicide - Joanna M. Foster, New York Times (07/19/2011)
  A Pennsylvania homeowner and an Indiana golf course company have filed a class-action lawsuit against DuPont charging that the chemical giant was either negligent or reckless in putting a new weedkiller on the market.

Additional Items

• EPA
  U.S. Environmental Protection Agency’s PFOA overview. 
• Dupont FAQ
  Dupont's C8 overview.