Robert Bilott
Attorney Robert Bilott delivering the keynote at ATMO America 2024 in Washington, D.C.

ATMO America: Famed PFAS Lawyer Bilott Sees ‘History Repeating Itself’ with F-Gas Refrigerants

“We’re hearing the same arguments – that there’s not sufficient science to say we should regulate this,” he said in his keynote.

Robert Bilott, the award-winning and widely profiled environmental attorney whose lawsuits over a two-decade period first exposed the environmental and health threat of PFAS (per- and polyfluoroalkyl substances), sees “history repeating itself” in the way the chemical industry is characterizing refrigerants.

Bilott told the story of his involvement in the PFAS issue – and provided lessons that could be applied to the refrigerants issue – in a keynote speech on June 10 at the ATMOsphere (ATMO) America Summit 2024 on natural refrigerant-based HVAC&R in Washington, D.C. He received a standing ovation at the end of his keynote from the more than 350 attendees. The conference, held June 10–11, was organized by ATMOsphere, publisher of NaturalRefrigerants.com.

Known as “forever chemicals” for their persistence in nature, PFAS encompass more than 14,000 synthetic fluorinated chemicals that have been used in a variety of applications, such as non-stick cookware and packaging, stain-resistant clothing and carpets, and firefighting foam. Bilott, whose work was the basis for the 2019 film Dark Waters and the 2018 documentary The Devil We Know, revealed the carcinogenic and other health impacts of two prevalent PFAS called PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid), which contain eight carbon atoms (known as C8s). Moreover, he learned that DuPont and 3M, the manufacturers of the chemicals, did not disclose their internal findings that these chemicals caused harm to laboratory animals and their own employees and publicly said that they were harmless.

“I think what we’ve learned here is we’re seeing this whole story repeat itself,” said Bilott. “We’re hearing the same arguments we heard on C8s 20 to 30 years ago – that there’s not sufficient science to say we should regulate this.”

According to the scientifically supported definition developed by the Organisation for Economic Co-operation and Development (OECD), PFAS also includes many “ultrashort-chain” two- and three-carbon HFO and HFC gases, some of which degrade into another two-carbon PFAS, trifluoroacetic acid (TFA), in the atmosphere; notably, HFO-1234yf degrades completely into TFA over the course of a few weeks. TFA, which is in the same chemical family as PFOA, descends in rainwater and infiltrates the environment and has been found in human blood. (There are other sources of TFA, such as the breakdown of pesticides and pharmaceuticals, and industrial waste.)

While Europe is in the process of considering regulations of f-gases and TFA as PFAS, the U.S. Environmental Protection Agency (EPA) and some U.S. states have decided to use a definition of PFAS that excludes f-gases and TFA. In response, more than 150 scientists recently signed a statement supporting a definition (such as OECD’s) that says PFAS contains “at least one fully fluorinated carbon atom” and includes f-gases and TFA.

Bilott noted the effort to define PFAS in a way that excludes ultrashort-chain chemicals. “Things are being removed from the definition – anything that’s got less than a certain number of carbons. So the public is seeing this thinking, ‘Oh, there’s no PFAS in it.’ It’s simply a different definition.” He also cautioned to be cognizant of the detection levels that are established for various PFAS. “As we’ve all learned, those detection levels change over time. And they get a lot more sensitive.”

The chemical industry has downplayed the connection between PFAS and f-gases/TFA. For example, the Sustainable PFAS Action Network (SPAN), which represents chemical industry interests, says that low-GWP refrigerants such as HFOs “do not show the three characters of greatest concern regarding PFAS, as they are not persistent, bioaccumulative, and toxic” according to a statement on its website. However, HFO degradation product TFA is well-known to be very persistent and mobile (vPvM), and the German government has linked it to reproductive toxicity. A study of Indiana households states that TFA’s presence in human blood suggests bioaccumulative properties. (A SPAN representative did not immediately respond to a request for comment on Bilott’s remarks.)

Chuck Allgood, Technical Fellow at U.S. HFO manufacturer Chemours, called TFA a “naturally occurring substance” with 95–99% of it “found in low levels throughout the Earth that has been there for hundreds of years, well before the industrial age” on May 1 at a University of Maryland (UMD) workshop called “Ultra-Low GWP Refrigerants for Refrigeration, Water Heating, and HVAC Applications,” sponsored by UMD, Oak Ridge National Laboratory, the U.S. Department of Energy and Guidehouse. However, Canadian researchers have determined that there are “no compelling scientific arguments” to support the existence of naturally formed TFA.

The contention that TFA is naturally occurring parallels a claim made by 3M-supported studies in the 1970s when human blood data was showing evidence of organic fluorine chemicals, which contain a carbon-fluorine bond like PFAS. “3M actually published studies, or had people print published studies, to try to suggest there were natural sources, when there was no evidence of any natural source for this organic fluorine,” said Bilott.

The chemical companies continued to influence the publication of studies on this topic. In 2004, Bilott said, all of the published peer-reviewed literature “had been essentially seeded by the companies to say, ‘No harm, there’s no problem here.’”

Poisoned cows

Bilott’s journey battling PFAS began in 1998 when he was approached by West Virginia farmer Wilbur Earl Tennant, who was convinced that a creek on his property had been poisoned by runoff from a nearby DuPont landfill, causing the death of many of his cows. That landfill proved to be a dumping site for PFOA.

The farmer’s case revealed that DuPont had covered up evidence that PFAS was harmful, leading to a class-action suit and penalties from the EPA. In a 2004 settlement of the class-action suit, DuPont agreed to pay $70 million (€64.8 million), which was used as an incentive to get nearly 70,000 West Virginians to provide blood samples that scientists could use to study the health effects of PFAS.

In December 2011, the scientists began to release their findings: there was a “probable link” between PFOA and kidney cancer, testicular cancer, thyroid disease, high cholesterol, pre-eclampsia and ulcerative colitis. This sparked more than 3,500 lawsuits, and DuPont ultimately agreed to pay $750 million (€701 million) to settle those suits. (In 2015, DuPont spun off its fluorinated chemicals business to a new independent company, Chemours.)

Finally in April of this year, a quarter-century since Bilott began exposing PFAS, the EPA issued stringent drinking water regulations for six PFAS, including 4ppt limits for PFOA and PFOS. His firm is continuing to represent more than a dozen states and hundreds of water suppliers in the latest lawsuits seeking millions of dollars to remove PFAS from the water supply.

In his 2019 book, Exposure, Bilott wrote about the ongoing questions about other PFAS chemicals: “There was growing awareness that the entire class of PFAS chemicals – as many as four thousand related compounds – might be a problem, including the newer replacement chemicals (like GenX) that were being billed as less persistent than PFOA and PFOS. Their structural similarity and some evidence from animal studies suggested they could be toxic or carcinogenic but we were hearing the same familiar argument that nobody had done the extensive science required to reach a firm and actionable conclusion on the human impact of these additional PFAS chemicals.”

Bilott echoed those thoughts in his ATMO America keynote: “This campaign [has begun] in the U.S. and overseas by the [chemical] makers to say there’s no evidence that they’re harmful, there’s no evidence yet that any of these cause any problem and they should be carved out from any attempts to regulate this stuff.”

Society needs to “learn from what we already know about the C8 debacle here,” he said. “Look how long it took us to get to the point where despite all of these internal studies that had been covered up for decades, and all the public representations that there’s no evidence of any harm, we finally learned the truth.”

The chemical industry, Bilott noted, has argued that regulating PFAS as a class that includes ultrashort-chain chemicals “is going to devastate the economy since thousands of jobs depend on these new related chemicals. And they’re instrumental in the transition to the green economy.” However, he noted, studies have shown that the impact of PFAS equates to tens of billions of dollars in health care costs and six million deaths. “Staggering, right?” he said.

An alternative would be to adopt the “precautionary approach – prevent the harm before it happens, not wait till people get sick and die,” he said.

Chemical interests also argue that there are no alternatives to PFAS refrigerants, but, he likened this to the contention about PFOA and PFOS, for which “there were plenty of alternatives that were quickly found and switched to when these were phased out.” Natural refrigerants, including CO2 (R744), propane (R290), isobutane (R600a) and ammonia (R717), are widely used throughout the world in virtually every HVAC&R application.

Bilott believes “it’s critically important” to find ways to present information on the environmental growth and health impacts of ultrashort-chain PFAS to government agencies like the EPA. “The EPA was completely misled for decades, and it took a long time for them to realize that, ‘wait a minute, [chemical companies] withheld information from us.’ So it’s incredibly important to find a way to get that information to the agencies presented in a way that it can be understood.”

What’s also important is “making sure the public understands what’s happening,” said Bilott. “We can’t just assume that if we provide the science and information to the government agencies, they will take care of it all. No, there needs to be public engagement in this. And that’s what prompts the change. That’s what gets the agencies to respond and to take action.”

“This campaign [has begun] in the U.S. and overseas by the [chemical] makers to say there’s no evidence that they’re harmful, there’s no evidence yet that any of these cause any problem and they should be carved out from any attempts to regulate this stuff.”

Robert Bilott

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