By Edward Walsh, Staff Writer
Photo courtesy of pixabay.com
On March 14, 2023, the U.S. Environmental Protection Agency (“EPA”) proposed extraordinary new regulations limiting the levels of per- and polyfluorinated substances (“PFAS”), also known as ‘forever chemicals,’ present in drinking water. This marks the first time in over 26 years that the EPA has put limits on contaminants found in drinking water. Michael S. Regan, EPA Administrator, announced this new proposal saying, “this action has the potential to prevent tens of thousands of PFAS-related illnesses and marks a major step toward safeguarding all our communities from these dangerous contaminants.”
So, what are PFAS and why are they so dangerous? PFAS refers to a group of chemical compounds originally manufactured in the 1940s. They were heralded for their non-stick and stain resistant qualities. PFAS found many uses in manufacturing as well as in commercial products like paints and eye makeup. Another quality of these compounds is that they take a long time to break down. As a result they can be carried far distances by wind, water, or on people’s clothing. PFAS now pervade the global ecosystem. Recent research suggests that they are found in the blood of almost all humans on earth.
The EPA cited that recent scientific research “suggesting” that exposure to high levels of PFAS can result in adverse health risks as its motivation for passing the new regulations. These adverse health risks are a result of a buildup of PFAS in the body which can cause decreased fertility, developmental delays in children, increased risk of cancer, high cholesterol, obesity, and a weakening of the immune system. These health risks are particularly high among industrial workers and pregnant or lactating women because these groups are often exposed to high level of PFAS.
These newfound health risks are what motivated the EPA to take regulatory action beginning in August of 2022. The EPA designated two PFAS compounds — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), to the list of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The EPA has since sought to restrict the use of PFAS more tightly. This most recent proposed regulation seeks to limit the amount of PFAS substances detected in drinking water from 70 parts per trillion (ppt) to 4 ppt. This is a 90 percent reduction from its previous level. For a sense of scope, one ppt is equivalent to a single drop in 20 Olympic size swimming pools. For comparison, in Pennsylvania the acceptable amount of lead in water is 15,000 ppt which is almost 400 times higher than the proposed level of PFAS.
While the new limits are mere proposals and not binding law yet, some bemoan the limit as “expensive, ineffective, and unworkable.” One of the new regulations’ most vocal critics is the American Chemistry Council (“ACC”), an advocacy group comprising over 190 companies many of which have used PFAS in the past. They recently filed an appeal against the EPA in the United States Court of Appeals for the District of Columbia seeking the court to vacate the EPA’s regulations of PFAS. In a petition for review, the ACC claims, among other things, that the EPA’s regulations are based on inconclusive science and are unworkable for most water treatment plants.
The ACC’s claims about the new standards being unworkable are not without merit. A recent study conducted by Consumer Reports, an independent nonprofit organization, found that over a fifth of the drinking water they tested would fail the EPA’s new PFAS regulations. This comes on top of news that many of the nation’s 16,000 water treatment plants are reaching the end of their life and are in serious need of repair. The ACC plans to continue the fight against the EPA in court.
While the EPA’s historic action is a step toward public health, it will have to overcome legal and structural challenges before it is effective. The Democratically controlled Congress has affirmed its commitment to overcoming these challenges in the Bipartisan Infrastructure Law by allocating over $2 billion dollars to the regulation of new contaminants including PFAS. Only time will tell if this is enough.