July 2023

Recent research conducted by the United States Geological Survey (“USGS”) determined that at least 45% of the tap water in the United States is projected to contain at least one type of per- and polyfluoroalkyl substances (“PFAS”). The USGS’s study assessed over 700 private and public tap water supplies in the United States, though they believe that the lack of detailed information about PFAS exposure in unregulated private wells may impact their projected estimated of PFAS-impacted tap water.

USGS’s research compared human PFAS exposures in 716 different locations, with 269 unregulated private wells, and 447 regulated public-supply tap water sources analyzed across the US from 2016–2021. The study found estimated median cumulative concentrations being similar among private wells and the public-supply. USGS has determined that the results are definitive evidence that further assessments of the health risks of PFAS as a class of contaminant, and in combination with other co-occurring contaminants (meaning other contaminants which are likely to be present alongside PFAS), are necessary.

In June 2023, the U.S. Circuit Court for the Sixth Circuit declined to resolve a unique PFAS state-law issue in Admiral Insurance Co. v. Fire-Dex LLC when it rejected an insurer’s attempt to avoid coverage for per- and polyfluoroalkyl (PFAS) lawsuits and found that the U.S. District Court properly declined to exercise subject-matter jurisdiction over the dispute.

Background

In Admiral, the insurer (Admiral) brought suit in the U.S. District Court for the Northern District of Ohio seeking declaratory judgment determining that Admiral was not required to defend its insured, Fire-Dex, in a string of actions alleging injuries and damages, primarily cancer, caused by exposure to PFAS-containing products.

In May 2023, the United States Environmental Protection Agency (EPA) announced the results of its analysis of ten different pesticide products sampled for the presence of per- and polyfluoroalkyl substances (PFAS). EPA’s sampling efforts were prompted by a highly publicized September 2022 third-party study that reported the presence of PFAS (in particular, perfluorooctanesulfonate (PFOS)) in six out of ten pesticide products sampled. The September 2022 study caused alarm as to the potential for unknown PFAS content or cross-contamination of certain pesticide products. However, EPA’s more recent sampling of ten pesticide products, using a new and purportedly more accurate sampling method, casts doubt on the prior sampling results since EPA did not detect PFAS in any of the ten pesticide products it sampled. EPA emphasized in its May 2023 announcement that it is confident in the results of its newer sampling method, which is specifically targeted to analyze for PFAS in pesticide products formulated with surfactants and non-volatile oils.

EPA obtained samples of the ten pesticide products from the third-party study author and from purchases of the same products on the open market. EPA evaluated the ten pesticide products using both EPA’s new method (the ACB Method) and the method used in the third-party’s earlier study (the Lasee Method). EPA did not detect any of the 29 additional PFAS for which EPA screened the pesticide products for (including PFOS), above the lab instrument’s detection limit of 0.2 parts per billion (ppb). Notably, EPA’s detection limit is 2,500 times more sensitive than the limit in the earlier third-party study. EPA requested additional information and raw data from the study author but did not receive anything other than the published results.

EPA has released a newly developed and validated analytical methodology for testing pesticide products for the presence of per- and polyfluoroalkyl substances (PFAS). Referred to as the ACB Method, this new PFAS-detection method was developed by EPA’s Analytical Chemistry Branch (ACB). The ACB Method primarily differs from an alternative PFAS-detection method (the Lasee Method) in its approach to sample preparation. As background, the Lasee Method was introduced by Steven Lasee in November 2022 in his co-authored study titled “Targeted Analysis and Total Oxidizable Precursor assay of several insecticides for PFAS” in the Journal of Hazardous Materials.

The Lasee Method prepares a sample through dilution in a solvent/water solution to dilute the matrix using a single instrument for analysis. The ACB Method requires a more intense extraction to isolate PFAS compounds from the sample matrix before instrumental analysis, thereby reducing matrix interference and increasing the accuracy of PFAS detection. In short, EPA’s ACB Method is designed to eliminate interference from non-volatile oils and surfactants present in pesticide formulations that can result in false positive detections of PFAS. EPA’s verification analysis contains additional scientific details on the difference between the two methods and the significance of using EPA’s ACB Method when testing specific formulations.