New Study Finds Widespread PFAS Contamination in Freshwater Fish, Implications to Loss of Use and Natural Resource Damages Claims
Kelley Drye Client Advisory
A new study conducted by the Environmental Working Group (EWG) and released on January 17, 2023, found that fish consumption across the United States is a significant source of PFAS exposure, especially in communities that frequently eat locally-caught freshwater fish. Indeed, the study found that eating one freshwater fish with the study’s median concentration of PFOS is equivalent to drinking a month’s worth of water containing PFOS at 2,400 times the EPA’s interim health advisory.
PFAS are a class of nonstick, waterproof, and stain-resistant compounds found in many industrial and consumer products. PFAS are ubiquitous and highly persistent in water and soil. The EPA has, formerly or currently, approved over one thousand PFAS chemicals for use in the U.S., and some of these chemicals have been used for decades. Analyzing sampling data from all 48 continental states, EWG’s study identified PFOS as the most common PFAS contaminant in fish, followed by PFUnDA, PFDA, PFDoA, and PFNA.
To compare PFAS concentrations in freshwater fish with those in commercially sold fish, the study drew from existing data. Researchers aggregated multiple datasets generated by the EPA to evaluate the concentrations of PFAS in locally-caught freshwater fish. Approximately 500 composite samples from freshwater fish—primarily channel catfish, smallmouth bass, largemouth bass, yellow perch, and walleye—were analyzed for PFAS compounds. Detectable levels of PFAS were found in fish from every state. To evaluate and compare PFAS levels in freshwater fish to commercially-sold fish, researchers looked at 81 samples collected by the FDA from regional and national grocery stores. The data comparison indicated that nearly all fish in the Great Lakes and U.S. rivers and streams have detectable PFAS in the parts per billion range, while seafood purchased at grocery stores are significantly less contaminated.
In addition, the study points out the environmental justice concerns associated with such disparate levels of contamination between locally-caught freshwater fish and the fish sold in grocery stores. Communities that regularly consume fish from freshwater sources often do so for economic and cultural reasons: for indigenous Tribal Nations, catching fish can be an essential tradition, social practice, and even a sovereign right; and, for people struggling with economic hardship, locally caught fish may provide vital sustenance.
The study notes that, while a national fish consumption advisory could bring attention to the risk of consuming certain species of fish that contain PFAS at dangerous concentrations, there are currently no federal guidelines or regulations specific to the consumption of PFAS-containing fish, leaving state regulators to craft their own approaches to the issue. Yet only a minority of states have issued their own PFAS fish consumption advisories. At the state level, advisories are often limited to certain waterbodies or contaminants. For example, most state guidelines for PFAS in fish are specific to PFOS.[1] Furthermore, many states use the reference dose underlying the EPA’s Health Advisory Guidelines for PFOA and PFOS issued in 2016 as a basis for advisories, but the EPA’s 2022 interim guidelines use a reference dose that is three orders of magnitude lower than the 2016 analysis. Notably, if fish advisories were updated to reflect the 2022 reference dose, nearly all freshwater fish analyzed in the study would be considered unsafe to eat.
The lack of uniform guidance for safe fish consumption is likely contributing to excess exposure to PFAS for fishermen and consumers of locally caught fish. The EWG’s study therefore suggests that regulators “focus on eliminating PFAS releases into the environment and identifying those who face the greatest risk of exposure to PFAS from fish consumption.” This requires states that are considering adopting or updating fish consumption advisories to navigate several tricky factors. Regulators will need to assess specific impacted areas to assess the scope of the problem, particularly considering the uneven distribution of PFAS in freshwater fish across states. For example, median levels of PFAS were 2.7 times higher in urban locations than in non-urban locations, and nearly twice as high in the Great Lakes than in other U.S. rivers and streams.
In some states, environmental agencies or natural resource trustees may pursue claims for natural resource damages (NRD) due to consumption advisories based on PFAS contamination. The contamination of fish constitutes an injury to a state’s natural resources, and states may wish to pursue statutory and/or common law remedies as a result. Federal statutes, and many state statutes, define natural resources as “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources.” Further, a state may pursue damages for the public’s lost use of the injured natural resources based upon the consumption advisories, which may be necessary to preserve public health, but limit both recreational and subsistence fishing, and cause direct economic losses to the State due to decreases in tourism or fishing trips.
The study concludes that, while state regulators have been rightly focused on identifying and treating PFAS-contaminated drinking water sources, they should also consider taking a closer look at fish consumption patterns as an additional—and potentially significant—exposure pathway.