People exposed to PFAS could sue for medical monitoring costs, under US legislation

People who were significantly exposed to per- and polyfluoroalkyl substances (PFAS) could sue makers of these chemicals to pay for health monitoring, under a bill introduced in the US Congress April 22.

If enacted into law, the legislation could mean significant liabilities for companies that did or do make these highly persistent “forever chemicals” and release them into the environment. The compounds are valued for their ability to repel water and oil and ability to withstand extreme conditions. Some, but not all, PFAS are toxic.

Activists in communities with PFAS contamination point out that it could take years for children and adults with high levels of these chemicals in their bodies to develop health problems as a result of their exposure. To catch such illness early and get treatment as soon as possible, they want medical monitoring.

“Making the polluters pay for it is undeniably logical,” Loreen Hackett, who lives in Hoosick Falls, New York, said at a briefing where the bill was unveiled. Her community has drinking-water supplies tainted with PFOA from a Saint-Gobain Performance Plastics plant formerly owned by Honeywell International.

The bill would allow US residents who’ve been exposed to PFAS to file federal suits seeking reimbursement for medical monitoring to detect health problems related to their exposure. Currently, only Arizona, California, the District of Columbia, Florida, Massachusetts, Missouri, New Jersey, Pennsylvania, Utah, and West Virginia allow such lawsuits, according to the Environmental Working Group, which advocates for strong regulation of PFAS.

In other US jurisdictions, people must wait to file a legal claim until they are sick with a condition related to exposure.

“These communities are told they, as the exposed people, have the burden to prove that these chemicals are causing harm,” Robert A. Bilott, a partner with the law firm Taft Stettinius & Hollister, said at the briefing. Bilott successfully led a class action suit against E. I. du Pont de Nemours & Co. representing people that were exposed to one kind of PFAS—perfluorooctanoic acid (PFOA)—released from a factory near Parkersburg, West Virginia.

That case settled in 2005, when the company agreed to pay up to $235 million for a monitoring program. It screens residents living near the factory for early signs of health problems that a science panel identified as linked to PFOA exposure: testicular and kidney cancers, high cholesterol, ulcerative colitis, thyroid disease, and preeclampsia.

The new congressional legislation would apply to persons who are “significantly exposed” to PFAS. The bill defines this as people exposed—for example, through drinking water—for a year or more to PFAS contamination released from a plant that produces the chemicals or uses them in products. People must also show that they have PFAS released by a factory—or metabolites of these substances—in their body or blood. And they must demonstrate that they have an increased risk of developing a disease associated with PFAS exposure, the bill says.

Under the bill, federal courts could order companies to fund epidemiology, toxicity, or other studies on PFAS in addition to paying for medical monitoring. The measure, which would amend the Toxic Substances Control Act, had not been assigned a bill number by C&EN’s deadline.

Sen. Kirsten Gillibrand (D-NY) and Reps. Madeleine Dean (D-PA) and Dan Kildee (D-MI) introduced the bill. They hope to drum up bipartisan support for the measure, which they said would impose accountability for irresponsible manufacturing of PFAS or products that contain these substances.

The American Chemistry Council, the largest association of US chemical manufacturers, says it will closely review the bill.

“On the surface this seems to be a radical departure from existing regulatory and legal processes that have been in place for decades,” the ACC says in a statement provided to C&EN. The group faults the measure in part for treating all PFAS the same. It also points to data from the US Centers for Disease Control and Prevention showing that levels of several types of PFAS in the blood of US residents have fallen in recent years.