EPA's PFAS Gap Compels States to Act

By Brittany Whited

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.


Brittany Whited is the Program Manager at the State Energy & Environmental Impact Center. She has a MPH in Environmental Health.