Policy Issue 3: Regulation of ‘forever chemicals’ PFAS

Policy Issue 3: Regulation of ‘forever chemicals’ PFAS

Per- and polyfluorinated Alkyl Substances (PFAS) are a class of over 4,700 chemicals used in a wide variety of products including nonstick cookware, firefighting foam, waterproof apparel, and grease-resistant food packaging, to name a few. Over time, these chemicals have found their way from these products and their manufacturing facilities to our water and food. However, we are just now starting to pay greater attention. The American Water Works Association, the water sector’s premier trade and scientific organization, releases an annual survey of professionals titled ‘State of the Water Industry (SOTWI) Report’. In 2014 report, PFAS was a top-ten emerging contaminant issue, but just barely. In the latest version of the report released in 2019, it rose to be sector’s second-highest ranked regulatory concern, just below non-point source pollution.

On February 14, 2019, the EPA released an action plan to address the growing challenges with PFAS in drinking water systems.[1] A year later, on February 21, 2020, EPA followed up by making a positive preliminary determination, which will eventually result in setting regulations, the extent of which will be determined during the regulatory process. Currently, utilities are guided by a health advisory of 70 parts per trillion (ppt) combined for two of the widely known PFAS chemicals: perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).

Due to their widespread use and persistence in the environment, most people in the U.S. have been exposed to PFAS. The EPA claims that continued exposure above specific levels to certain PFAS may lead to adverse health effects. Lab tests on animals subjected to high levels of certain PFAS have shown negative impacts on growth and development, reproduction, thyroid function, the immune system, and the liver. As a result, there is intense pressure on EPA to develop regulations that prescribe the maximum contaminant levels (MCLs) for individual PFAS chemicals or the whole family as a unit.

The Regulatory Process

The Safe Drinking Water Act (SDWA) allows EPA to include new chemicals in its list of regulated contaminants, but the process is extremely long and rigorous, given the implications for all water utilities and the various sectors of our economy. This process has worked well for individual contaminants such as arsenic and nitrates. But PFAS presents an altogether different challenge. The sheer number of PFAS chemicals and their complexity overwhelm the process. The SDWA regulatory process only allows EPA to add 30 contaminants in a 6-year cycle. At this rate, even if we had perfect knowledge about each one of the 4,700+ PFAS, it would take nearly 1000 years at a minimum to develop regulations for each one of them. Of course, one could prioritize and design regulations for the most pervasive and harmful chemicals. Public health advocates argue that EPA ought to break from the precedent and regulate the whole family of PFAS chemicals as one contaminant and thus dramatically cut down the regulatory process. The water industry, including utility trade groups such as AWWA, is extremely skeptical of this approach and want to “follow the science.” As this debate continues, the health and safety of millions is at stake.

“The EPA is not moving fast enough to gather data on emerging contaminants, creating a patchwork quilt of state regulations” – Utility leader based in the South

State environmental agencies have identified PFAS in surface water, ground water, soils, and even bottled water. EPA’s slow pace of action has spurred intense regulatory action at the state level. Several states now have regulations on certain PFAS chemicals that are more stringent than the EPA health advisory levels.[2]

State regulations in certain states now supersede EPA advisory on PFAS. Source: Bloomberg News.

EPA Management Action Plan

Under the Action Plan, EPA will move forward with the determination process to regulate PFOA and PFOS—two of the most well-known and prevalent PFAS chemicals. This does not mean that EPA will eventually regulate the chemicals, but just that the regular process will continue, perhaps at an accelerated pace given the severity and scale of the issue. Presently, the health advisory remains at 70 ppt and is the only federal guideline regarding the safety of PFAS.

Additionally, EPA also plans to provide cleanup guidance to states and tribes for federal cleanup programs such as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA). EPA is initiating the regulatory development process for listing certain PFAS as hazardous substances under CERCLA, which will make available federal funding for communities impacted by PFAS pollution – a request advocates have made for long. Additionally, EPA will propose nationwide drinking water monitoring for PFAS under the next monitoring cycle for unregulated contaminants. The EPA also plans to use enforcement tools to address PFAS exposure and develop a risk communication toolbox for federal, state, tribal, and local partners.

What happens next?

On December 4, 2019, EPA sent the proposed regulatory determination for PFOA and PFOS to the Office of Management and Budget for interagency review.[3] On February 21, 2020, EPA made a positive preliminary determination, which will eventually result in setting regulations, the extent of which will be determined during the regulatory process. The publication of the preliminary regulatory determination now opens a public comment process, followed by a final regulatory determination. There is wide expectation that the determination for PFOA and PFOS regulations will be positive. If that is indeed the case, a process to establish a national primary drinking water regulation for PFOA and PFOS will begin immediately afterward.

Setting national contaminant standards is a long and arduous process, complicated by the prevalence and toxicity of chemicals, and the available science. Even if the EPA makes a final regulatory determination to regulate PFOA and PFOS, it will be at least a few years before a proposed regulation is released.

Final takeaway

The EPA is taking sustained action to address contamination of our water supplies by PFAS. But the sheer number and complexity of these chemicals has overwhelmed the scientific and regulatory process set up under the SDWA. Even if the EPA determines the need to regulate PFOA and PFOS, this process will not address contamination from other PFAS such as GenX chemicals (trade name for a class of chemicals) and perfluorononanoic acid (PFNA). State regulations have proven to be a somewhat faster and a more certain approach, but the patchwork nature of state regulations presents compliance challenges to the water sector and leaves out millions of residents living in non-regulated states. This is also one of the growing number of challenges where the water sector is required to come up with a remedial action for a problem caused by other sectors of the economy (for a parallel, one can review challenges with non-point source pollution from agriculture).

 

[1] EPA. 2019. EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan. EPA 823R18004. Washington, D.C.: Author.

[2] Silverman, G. 2018. Glass Half-Full on State Solutions to Chemicals in Water (Corrected). Bloomberg News. September 18. Accessed at: https://news.bloombergenvironment.com/environment-and-energy/glass-half-full-on-state-solutions-to-chemicals-in-water-corrected

[3] EPA. 2019. EPA Moves Forward on Key Drinking Water Priority Under PFAS Action Plan. News release. December 4. Accessed at: https://www.epa.gov/newsreleases/epa-moves-forward-key-drinking-water-priority-under-pfas-action-plan