What is all the hype and where are we headed?
The dawn of PFAS awareness is upon us! It is hard to have a discussion on water quality here in Washington, D.C. or in any other state capital without the threats posed by per- and polyfluoroalkyl substances (PFAS) and what should be done sneaking into the conversation. In fact, it is becoming increasingly difficult to even keep track of the legislation and regulations coming out from various states on this topic. Congress alone has introduced more than 40 bills that try to address PFAS through various means. With all of the press and attention this subject is garnering, having a basic understanding of what the PFAS landscape looks like at the national level is critical, as it sets the stage for everything else that will come in the next few years.
WHAT ARE PFAS?
Per- and polyfluoroalkyl substances (PFAS) are a group of man-made chemicals that include a few other chemicals you may have heard in reference to this topic, such as perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and GenX. PFAS have been manufactured and used in a variety of industries around the globe, including in the United States, since the 1940s. Some of the more common applications include nonstick coatings, food wrappers, waterproof materials, and fire suppressants. PFAS have been found in the environment and in the blood of humans and animals worldwide. Most people in the United States have one or more specific PFAS in their blood, especially PFOS and PFOA1.
PFOA and PFOS have been more extensively produced and studied than other PFAS. Both of these chemicals are very persistent in the environment and in the human body – meaning they don’t break down and they can accumulate over time. There is also evidence that exposure to certain PFAS can lead to adverse human health effects. Studies indicate that PFOA and PFOS, for example, can cause reproductive and developmental, liver and kidney, and immunological effects in laboratory animals. These chemicals were voluntarily phased out of production in the United States, but not necessarily out of products being imported to the United States. Additionally, as many as 3,000 other PFAS chemicals still are used in a wide variety of applications.
There is still much research that needs to be done to fully understand the impact of PFAS on our communities. However, the real and perceived dangers posed by PFAS are capturing national headlines as we come to terms with how pervasive these chemicals have been used and where they are now appearing. Understandably, communities near military bases (where PFAS were used in firefighting foam), and near other industrial processes where PFAS have been found at the highest levels have been important advocates for the change that is continuing to come.
HOW BIG IS THE PFAS PROBLEM?
In 2016, the U.S. Environmental Protection Agency (EPA) reported that public water systems in 29 states had detected at least one PFAS in their water supplies. In total, 63 public water systems serving approximately 5.5 million people had detected PFAS at a level of 70 parts per trillion (ppt). EPA has also reported the PFAS contamination of drinking water “is typically localized and associated with a specific facility.” However, there are other estimates that the drinking water supplies for at least 16 million people are contaminated with PFAS.
ARE PFAS REGULATED IN WATER?
The primary responsibility of regulating these PFAS in water falls to the EPA. The Safe Drinking Water Act (SDWA) requires the EPA to identify contaminants to regulate in drinking water to protect public health. After identifying the contaminants, EPA has several options to begin regulating them. These options include 1) issuing health advisories, 2) regulating contaminants in water provided by public water systems, and 3) issuing enforcement orders in certain circumstances. The EPA has established a non-enforceable health advisory level of 70 parts per trillion (ppt) for the sum of PFOA and PFOS (a handful of chemicals in the PFAS universe). While, the EPA has not taken the next step of establishing enforceable maximum contaminant levels (MCLs) for any PFAS, it is anticipated that EPA will begin the process of formally regulating PFOA and PFOS in drinking water by early 2020.
So, the big question is then, “Why isn’t more action being taken?” The answer is not simple and will require time. PFAS is the umbrella name for a large class of chemicals. Among the thousands of different PFAS, few have enough health studies to determine a level or threshold at which adverse health effects are not expected to occur. Essentially, there is not enough scientific data for many of these chemicals to determine how much a person can be exposed to before causing health problems. EPA cannot regulate a contaminant without this scientific data. Most studies of potential health effects of PFAS have focused on PFOA and PFOS because of their predominant historical use. However, for those PFAS for which scientific information is available, animal studies suggest that exposure to particular substances above certain levels may be linked to various adverse health effects. We need more quality research!
EPA is taking action. In February 2019, EPA released its National PFAS Action Plan and is going through the process of determining future regulations specific to PFOA and PFOS. These chemicals have been actively monitored by EPA in drinking water since 2009. In the summer of 2020, EPA is expected to expand its monitoring to include a number of more PFAS. This is an essential step to understanding the level at which they are appearing in our water supplies and to understand what additional regulations need to be undertaken.
PFAS FRONT AND CENTER IN CONGRESS’ MIND
With more than 40 bills in front of Congress, PFAS is becoming a topic that many members of Congress and their staff are conversant on. Paying for the cleanup of PFAS contamination is one of a number of issues that Congress has been looking at this year. This issue has been playing out this year in a debate over legislation that will pass this month, funding the Department of Defense’s activities. The spending bill, known as the National Defense Authorization Act, was seen as a potential opportunity to fast track EPA’s actions on PFAS. Proposals for the bill included requiring PFAS-contaminated sites to be cleaned under the Superfund program, as well as limits on how much PFAS could be released into water supplies. Ultimately, these proposals were rejected. House Democrats saw the bill as their best chance to force President Trump’s EPA to increase its oversight of PFAS. Senate Republicans resisted these measures, wary of forcing chemical companies and the Defense Department to undertake extensive cleanups. But when hopes of a compromise faded in early December, Democrats were left with little choice but to agree to remove most of the PFAS proposals or kill the entire defense spending bill. The bill that emerged out of a joint House-Senate committee at the beginning of December had been stripped of measures that would require the EPA to designate the chemicals as “hazardous” and set a nationwide safety standard for PFAS in drinking water. A proposal requiring contaminated sites across the country to be cleaned up under the Superfund program had also been removed, as had one that would limit how much PFAS chemical manufacturers could release into water supplies.
However, there are number of PFAS provisions still in the bill. If the final bill is approved, it will force the Pentagon to phase out use of PFAS in firefighting foam by 2024. The military would also be barred by 2021 from giving service members ready-to-eat meals packaged in containers treated with PFAS. The bill will also require that the chemicals be added to the federal Toxics Release Inventory, which compels companies to report the type and quantity of the chemicals they are releasing into the environment. It will also expand monitoring for PFAS in tap water and groundwater.
PRESSURE FROM STATES
Many states are not waiting for EPA to begin taking action on PFAS. This summer, New Hampshire finalized drinking water MCLs for PFOS and PFOA, setting levels for those compounds at 15 ppt and 12 ppt respectively. These levels are well below EPA’s non-enforceable health advisory level of 70 ppt and they went into effect on Oct. 1, 2019. New Hampshire also adopted MCLs for other PFAS chemicals (PFHxS at 18 ppt and PFNA at 11 ppt. New Jersey is on this path as well with proposed MCLs of 13 ppt for PFOS and 14 ppt for PFOA. New Jersey also already has the first formal PFAS MCL (PFNA at 14 ppt).
Some state officials are pressing EPA to go beyond its current plans and instead develop more non-binding health advisory levels in drinking water, arguing the toxicity values are of little use to state drinking water and cleanup programs. Should EPA eventually craft such health advisory levels, it could provide states with clearer – albeit non-regulatory – cleanup targets for drinking water contaminated with PFAS. It is not clear whether EPA will craft additional health advisory levels as the agency’s broad PFAS action plan is silent on the topic.
MORE TO COME
The PFAS story in the U.S. is still being written. For the foreseeable future, this will continue to be one of the top threats facing America’s drinking water. As EPA continues on its path of regulating these chemicals, we expect to continue to see efforts made by Congress and state governments to expedite this process.
1 “PFAS Blood Testing.” Agency for Toxic Substances and Disease Registry (ATSDR), 10 Jan. 2018, https://www.atsdr.cdc.gov/pfas/pfas-blood-testing.html.
Originally published in Working Pressure magazine