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EPA's PFAS Gap Compels States to Act

Beakers in a chemistry lab

Back­ground

Nine­ty-eight per­cent of peo­ple in the U.S. have some lev­el of high­ly flu­o­ri­nat­ed chem­i­cals in their blood. These chem­i­cals, called per- and poly­flu­o­roalkyl sub­stances (PFAS), are a group of envi­ron­men­tal­ly ubiq­ui­tous indus­tri­al chem­i­cals with known risks to human health. Prized for their dura­bil­i­ty and used in a vari­ety of indus­tri­al process­es, includ­ing non-stick and stain-resis­tant prod­ucts, PFAS tend to stick around in the envi­ron­ment and in humans — depend­ing on the PFAS in ques­tion, the half-life in the human body is 3 – 9 years.

The most con­cern­ing route of expo­sure to PFAS in the gen­er­al pub­lic is via drink­ing water. Both the sci­en­tif­ic lit­er­a­ture and aware­ness of PFAS in drink­ing water have great­ly increased in recent years and it is emerg­ing as one of the most sem­i­nal pub­lic health chal­lenges of the decade.

Two of the most preva­lent PFAS com­pounds, per­flu­o­rooc­tanoic acid (PFOA) and per­flu­o­rooc­tane sul­fonate (PFOS), can cause repro­duc­tive and devel­op­men­tal, liv­er, kid­ney, immuno­log­i­cal effects, and can­cer (PFOA) and thy­roid hor­mone dis­rup­tion (PFOS) in lab­o­ra­to­ry ani­mals. Epi­demi­o­log­i­cal human health stud­ies sup­port the rela­tion­ship between PFAS expo­sures and these neg­a­tive health out­comes: expo­sure has been linked to var­i­ous can­cers, kid­ney dis­ease, birth defects, and devel­op­men­tal disorders.

These human health effects have been known to EPA for some time. The agency began to take steps to address pub­lic PFAS expo­sure as far back as 2002. Since that time, EPA’s actions have been focused on vol­un­tary indus­try phase-outs, estab­lish­ing non-enforce­able and non-reg­u­la­to­ry health advi­so­ry lev­els, and gath­er­ing infor­ma­tion from affect­ed communities.

Tox­i­c­i­ty

PFAS chem­i­cals received a dose of sig­nif­i­cant pub­lic atten­tion on May 14, 2018, when it was report­ed that the EPA and the White House, along with the Defense Depart­ment, had pres­sured a divi­sion of the Cen­ters for Dis­ease Con­trol and Pre­ven­tion to with­hold a health study on PFAS expo­sure and asso­ci­at­ed health risks, describ­ing it as a pub­lic rela­tions night­mare. A pub­lic out­cry ensued, prompt­ing the Admin­is­tra­tion to release the CDC report in June 2018. The report revealed that the esti­mat­ed safe lev­els of expo­sure are sev­en to ten times less than the EPA’s pub­lished 2016 health advi­so­ry lev­el. When pressed at a recent Sen­ate hear­ing on whether the EPA would revis­it their health advi­so­ry lim­it based on this new infor­ma­tion, EPA rep­re­sen­ta­tive Peter C. Gre­vatt respond­ed that the agency had no inten­tion to do so at this time, stat­ing that, as the sci­ence con­tin­ues to devel­op, we will look back at this issue.”

Expo­sure

Esti­mates of the num­ber of peo­ple exposed to PFAS have increased in recent years. A 2016 study esti­mat­ed that PFAS is in the drink­ing water in at least 33 states, and the chem­i­cals have been detect­ed at lev­els exceed­ing EPA’s 2016 health advi­so­ry lev­els in the drink­ing water of more than 6 mil­lion Amer­i­cans. Tens of mil­lions more res­i­dents are like­ly drink­ing water with PFAS lev­els high­er than those con­sid­ered safe by the 2018 CDC report and inde­pen­dent scientists.

Indeed, there are hun­dreds, or more like­ly thou­sands, of PFAS con­t­a­m­i­na­tion sites nation­al­ly, includ­ing over 400 mil­i­tary instal­la­tions with known or sus­pect­ed releas­es. These mil­i­tary com­mu­ni­ties are espe­cial­ly at risk. In one study, 90 per­cent of 131 mil­i­tary sites ana­lyzed had PFAS ground­wa­ter or drink­ing water con­cen­tra­tions at least 10 times high­er than the thresh­old set by CDC in June, and near­ly two-thirds had con­cen­tra­tions at least 100 times high­er than the threshold.

Indi­vid­ual sites with stag­ger­ing lev­els of con­t­a­m­i­na­tion keep pop­ping up. In Oak­land Coun­ty, Michi­gan, PFAS con­cen­tra­tions in Nor­ton Creek were dis­cov­ered to be more than 450 times high­er than the EPA’s health advi­so­ry lev­el. PFAS con­t­a­m­i­na­tion can be found through­out the U.S. water sys­tem — from Wash­ing­ton, to New Hamp­shire, to North Car­oli­na. A 2018 analy­sis esti­mates that more than 1,500 drink­ing water sys­tems, serv­ing up to 110 mil­lion Amer­i­cans, may be con­t­a­m­i­nat­ed with PFAS

Response

Fol­low­ing pub­lic out­cry, EPA host­ed a PFAS Nation­al Lead­er­ship Sum­mit in May 2018, and invit­ed affect­ed com­mu­ni­ty mem­bers and experts to dis­cuss how EPA should tack­le PFAS con­t­a­m­i­na­tion. EPA trav­eled to five affect­ed com­mu­ni­ties over the sum­mer and opened a pub­lic dock­et (com­ment dead­line was Sep­tem­ber 28) to obtain infor­ma­tion on ongo­ing efforts to char­ac­ter­ize risks from PFAS, devel­op mon­i­tor­ing and treat­ment and cleanup tech­niques, inform near-term actions need­ed to address chal­lenges cur­rent­ly fac­ing states and local com­mu­ni­ties, and to devel­op risk com­mu­ni­ca­tion strate­gies to address pub­lic con­cerns with PFAS.

Using infor­ma­tion from the Nation­al Sum­mit, pub­lic com­ments, and oth­er com­mu­ni­ty engage­ments, EPA expects to devel­op a PFAS Man­age­ment Plan for release lat­er in 2018.

EPA is has stat­ed that it is con­sid­er­ing estab­lish­ment of max­i­mum con­t­a­m­i­nant lev­els (MCLs) for PFOA and PFOS in drink­ing water and, poten­tial­ly, des­ig­nat­ing PFOA and PFOS as haz­ardous sub­stances” through an avail­able statu­to­ry mech­a­nism, such as CER­CLA. Addi­tion­al­ly, EPA has sent draft cleanup rec­om­men­da­tions to The White House Office of Infor­ma­tion and Reg­u­la­to­ry Affairs. OIRA is cur­rent­ly review­ing the draft inter­im cleanup recommendations.

States Step Up

Faced with grow­ing pub­lic pres­sure to address the per­sis­tent chem­i­cal con­t­a­m­i­nants — par­tic­u­lar­ly giv­en the EPA’s lag­ging nation­al stan­dards — eight states have stepped up to fill in the reg­u­la­to­ry gap. Accord­ing to an analy­sis by Bloomberg Envi­ron­ment, Col­orado, Min­neso­ta, Michi­gan, New Jer­sey, New Mex­i­co, Texas, Ver­mont, and Wash­ing­ton have all tak­en action on water or cleanup reg­u­la­tions. And 11 oth­er states-Alaba­ma, Cal­i­for­nia, Illi­nois, Mass­a­chu­setts, Mis­sis­sip­pi, Mon­tana, New Hamp­shire, New York, North Car­oli­na, Penn­syl­va­nia, and Wis­con­sin-are con­sid­er­ing sim­i­lar steps. States are address­ing the prob­lem in a vari­ety of ways includ­ing prod­uct bans, reg­u­la­tions, and guid­ance that dif­fers from fed­er­al recommendations.

PFAS man­u­fac­tur­ers also have agreed to pay hun­dreds of mil­lions of dol­lars to set­tle law­suits based on sur­face water and ground­wa­ter con­t­a­m­i­na­tion. In many instances, state attor­neys gen­er­al are lead­ing the charge. For exam­ple, Min­neso­ta Attor­ney Gen­er­al Lori Swan­son set­tled a ground and sur­face water con­t­a­m­i­na­tion case ear­li­er this year with PFAS man­u­fac­tur­er 3M for $850 mil­lion. In New York, AG Bar­bara Under­wood is lead­ing a suit against 6 man­u­fac­tur­ers for pol­lut­ing drink­ing water, and Ohio’s AG Mike DeWine has filed suit against DuPont for sim­i­lar envi­ron­men­tal contamination.

Bi-Par­ti­san Agreement

Con­gress also is tak­ing steps to tack­le the nation-wide issue of PFAS con­t­a­m­i­na­tion. The 2018 Nation­al Defense Autho­riza­tion Act (NDAA) includ­ed $7 mil­lion for a PFAS health study, along with $72 mil­lion for DoD reme­di­a­tion efforts. The 2019 NDAA increased the health study’s fund­ing to $10 mil­lion and fur­ther direct­ed DoD to assess and research PFAS con­t­a­m­i­na­tion, affect­ed com­mu­ni­ties, and reme­di­a­tion actions.

Con­gress has been push­ing to get PFAS rec­og­nized as haz­ardous sub­stances, which would trig­ger nation­wide test­ing and reme­di­a­tion of drink­ing water resources. Even with­out EPA’s for­mal estab­lish­ment of drink­ing water max­i­mum con­t­a­m­i­nant lev­els, there is bipar­ti­san sup­port for action.

The Sen­ate, for exam­ple, held its first hear­ing on PFAS last week. The sub­com­mit­tee hear­ing, titled The Fed­er­al Role in the Tox­ic PFAS Chem­i­cal Cri­sis,” exam­ined the over­sight of fed­er­al agen­cies’ PFAS cleanup efforts, next steps, and explored the scope of the prob­lem and its poten­tial impacts on health and the envi­ron­ment. At the hear­ing, mem­bers of com­mu­ni­ties with con­t­a­m­i­nat­ed drink­ing water demand­ed swift action on behalf of the EPA.

The House held a hear­ing on PFAS con­t­a­m­i­na­tion in ear­ly Sep­tem­ber, where Ener­gy and Com­merce Com­mit­tee rank­ing mem­ber Frank Pal­lone (D‑N.J.) stat­ed that com­mu­ni­ties were look­ing for real solu­tions and real action from the EPA and the DOD,” adding that, a bind­ing, enforce­able, and strong drink­ing water stan­dard” was urgent­ly needed. 

Con­gress has also intro­duced bills to address PFAS con­t­a­m­i­na­tion. S. 3382, The PFAS Detec­tion Act of 2018, would require the U.S. Geo­log­i­cal Sur­vey to per­form a nation­wide sur­vey of PFAS con­t­a­m­i­na­tion. S. 3381, the PFAS Account­abil­i­ty Act of 2018, and the House ver­sion, H.R. 6835 would encour­age fed­er­al agen­cies to enter into agree­ments with affect­ed states for removal and reme­di­a­tion for PFAS con­t­a­m­i­na­tion in water and sed­i­ment. The House bill would also require EPA to deter­mine whether PFAS should be des­ig­nat­ed as haz­ardous sub­stances under CER­CLA with­in one year of the bil­l’s passage.

Even with grow­ing pub­lic pres­sure and bipar­ti­san sup­port for PFAS reg­u­la­tion, EPA’s reg­u­la­to­ry road to estab­lish­ing it as a chem­i­cal harm­ful to human health could take years. In the mean­time, states will be left to defend and pro­tect their res­i­dents from this emerg­ing threat.