Alexander H. Kipperman of Anapol Weiss.

One of our nation's most compelling and urgent toxic tort cases continues to affect local communities. Over 100,000 citizens in Montgomery and Bucks counties remain unable to drink their own water due to contamination from PFAS, a toxic chemical used in firefighting foams. Local governments have had to seek water from outside sources, often using interconnections to water supplies free of PFAS contamination. Similar lawsuits in Pennsylvania and around the country are consolidated in a multidistrict litigation (MDL) in the U.S. District Court for the District of South Carolina. Despite these lawsuits and the swift action by other states to combat this water crisis, our own Pennsylvania Department of Environmental Protection seems paralyzed and unable to protect the commonwealth's water supply. As toxic torts go, this may be one of the most complex and have the farthest-reaching impact as it will affect the drinking water of millions of Americans.

For decades, these toxic chemicals have been insidiously seeping into the water table surrounding the former Willow Grove Naval Air Station Joint Reserve Base in Horsham Township and the former Naval Air Warfare Center in Warminster Township. These toxic chemicals are known as perfluorinated compounds or PFAS.  PFAS can be found in a variety of products, including aqueous film forming foam, also known as AFFF, which the military has used to suppress high intensity fires. The use of AFFF in fire training exercises and in real emergency situations has resulted in these PFAS chemicals being discharged into the environment. PFAS can also enter the water supply through manufacturing plants and landfills containing contaminated soil and products containing PFAS. The chemical is so toxic that the EPA has linked serious human health problems to exposure with water containing only several parts per trillion.

The contamination of water supplies across the country caused by the use of PFAS-containing firefighting foam has resulted in lawsuits being brought by states, municipal water providers, and individual plaintiffs against the manufacturers of these chemicals and foams including 3M, Dupont, National Foam and Tyco Fire Products.

The EPA released a provisional health advisory level for PFAS in 2009 at 200 and 400 parts per trillion for the two most prominent PFAS compounds, PFOS and PFOA, respectively. Under 42 U.S.C.A. Section 300g-1, EPA health advisories are nonenforceable and nonregulatory, and simply serve as guidance to states, regulatory agencies and municipalities. The EPA has linked exposure to PFAS to numerous health effects, including low infant birth weights, altered puberty, skeletal variations, testicular and kidney cancer, liver tissue damage, effects on the immune system and thyroid hormone disruption. In 2016, the EPA reduced the PFAS health advisory level to a combined 70 parts per trillion.

The question is: what can Pennsylvania do at a regulatory level to protect its citizens from harmful exposure to PFAS? A first step would be to set a maximum contaminant level (MCL). This would serve as an enforceable threshold to trigger funding for remediation and monitoring. An MCL can be set three ways: directly by the Pennsylvania Department of Environmental Protection (DEP) through the Environmental Quality Board (EQB), petitioning the Environmental Quality Board, or through the legislative process.

Our neighboring states have successfully set MCLs. New Jersey set an MCL at 14 parts per trillion for PFOA and 13 parts per trillion for PFOS; New Hampshire's MCL is set at 12 parts per trillion for PFOA and 18 parts per trillion for PFOS; and New York recently set an MCL at 10 parts per trillion for both PFOA and PFOS.

Although the DEP has the authority to set an MCL, as of September 2019, it does not intend to do so. The DEP reasons that there has never been a documented need to set a state MCL and if a need were identified, there are tremendous challenges with setting a state MCL. The DEP also claims that it lacks that funding, occurrence data, and the expertise necessary to develop the science in support of a proposed MCL.

This inaction from the DEP represents an institutional breakdown given that the DEP accepts that PFAS exposure causes injury to laboratory animals and humans. The Pennsylvania Department of Health also acknowledges that kidney, prostate and testicular cancers are linked to PFAS exposure. Somehow, the very agency designated to protect the environment lacks the resources to make a fundamental determination regarding a known and identified toxic chemical pervading Pennsylvania's water supply and poisoning Pennsylvania residents.

The DEP's claimed lack of occurrence data is odd given that the commonwealth has undertaken PFAS sampling programs since 2016. Testing in certain townships has shown contamination at over 16,000 parts per trillion. The commonwealth has also dispersed funds to townships including Warminster, Horsham and Warrington to assist in remediation due to extensive PFAS contamination. In other words, the occurrence data suggests that the contamination is widespread and merits the scientific justification for an MCL.

Apparently, the DEP has struggled to hire a qualified toxicologist since at least mid-2018. Although the agency had posted a full-time toxicologist position and began interviewing, candidates expressed "intimidation at the prospect of being the only state toxicologist on staff . … and expected perhaps more infrastructure across agencies." According to the DEP website, as of September, Pennsylvania still does not employ a toxicologist to study PFAS contamination. This comes as a surprise given the announcement from Gov. Tom Wolf a year ago that a toxicologist and two associate toxicologists would be hired. For comparison, New Jersey employs two toxicologists specifically studying the risks and health effects of PFAS. The fact that the Pennsylvania DEP has proven incapable of filling this position represents another breakdown and failure to achieve the DEP's basic objective of ensuring nontoxic drinking water.

The DEP has also shown little interest in the process of reviewing public petitions for an MCL. In May 2017, the Delaware Riverkeeper Network (DNR) submitted a rulemaking petition seeking to set Pennsylvania's MCL at six parts per trillion. The petition was unanimously accepted by the EQB in August 2017. Per EQB regulations, the DEP was required to issue a response report within 60 days, however, the DEP instead responded that it would likely release a response report by June 2018. That report was never issued. In May 2019, the DNR then filed a petition for review in the Commonwealth Court demanding that the DEP review their 2017 rulemaking petition for an MCL. As of August, the petition for review is still pending in the Commonwealth Court.

Similarly, there has been little action on the legislative front. state Sen. Maria Collett, representing parts of Bucks and Montgomery counties, introduced S.B. 581, which would set a PFAS MCL at 10 parts per trillion by amending the 1984 Pennsylvania Safe Drinking Water Act. This bill would work in conjunction with S.B. 582, which Collett simultaneously introduced. S.B. 582 designates PFAS as a hazardous substance under the Hazardous Sites Cleanup Act of 1988 and would trigger municipalities' ability to seek legal recourse to fully recoup water contamination remediation costs from the responsible party or parties. Both bills are presently pending before the Environmental Resources and Energy Committee. Given the political environment in Harrisburg, the chance of these bills passing is slim.

All of us should be imploring the DEP directly or through our legislators to get moving on this critical public issue. The importance of safe drinking water cannot be overstated. The problem is real and will not go away with the passage of time. While the thousands of lawsuits presently pending in the MDL in South Carolina may provide compensation for the victims, the ultimate goal must be to provide citizens of our commonwealth with safe drinking water as quickly as possible. In order to achieve this goal, the commonwealth and the DEP must act now to protect the health and safety of its citizens.

Alexander H. Kipperman is an associate at Anapol Weiss and is a member of the firm's environmental and toxic tort team. Kipperman currently handles water contamination cases and concentrates his practice on environmental and toxic torts, and both pharmaceutical and products liability mass torts. He can be reached via email at [email protected].