In March, a bipartisan group of senators introduced legislation that would classify all PFAS (Per- and Polyfluoroalkyl Substances) as “hazardous substances” under the Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA), often referred to as Superfund. If this bill passes and is signed into law, cleanups of these chemicals would be eligible for CERCLA cleanup funds and cost recovery actions under that law. The bill was introduced following the EPA’s issuance of their PFAS Action Plan, which was met with a mixed response, including skepticism from states who have indicated that some of the steps highlighted in the Action Plan should be taken more quickly – such as the change outlined in this recent legislation.
The EPA issued their PFAS Action Plan in February following a series of community and stakeholder meetings over the past year beginning with the May 2018 EPA PFAS Summit. The plan sketches out the EPA’s approach to regulate the chemicals, as well as efforts to drive research and testing surrounding this complex class of substances.
PFAS are a group of more than 3,500 man-made chemicals which are present in fire-fighting foams and a variety of consumer products including some types of non-stick and waterproof coatings, waxes, paints, and food packaging. They are very persistent and mobile in the environment, degrade very slowly, and recent studies have indicated that they are present in many groundwater systems throughout the United States. The health impacts of PFAS are the subject of much research and our knowledge of their general activity in the body is beginning to emerge. So far, some of these chemicals have been linked to reproductive issues, developmental problems, hormonal imbalances, increased cancer risk, high cholesterol, and thyroid issues. The presence of PFAS in groundwater systems and drinking water systems in communities have driven a number of lawsuits, including New Jersey, Michigan, and Washington state.
What’s the EPA’s Plan?
In the Action Plan, EPA identified five priority actions, as well as several short- and long-term issues. Those priority actions are:
- To determine if regulatory drinking water standards (or “MCLs”) should be set for two of the most well-understood PFAS chemicals (known as “PFOA” and “PFOS”). While the determination whether or not to set standards for these chemicals is set to occur this year, setting an MCL requires extensive formal rulemaking and public outreach activity, thus this process could take substantially longer. These would potentially be the first new chemicals regulated under the Safe Drinking Water Act added since 2006.
- To begin the process to list those two chemicals as “hazardous substances” under CERCLA (which the recently-introduced legislation would expedite and expand)
- To provide recommendations in 2019 of how to address groundwater cleanups of those two chemicals to support current or future cleanup actions.
- To complete assessments into the health effects and toxicity in 2020 of additional PFAS chemicals beyond PFOA and PFOS, including two known as “GenX” and PFBS, in 2019; as well as five other PFAS. These PFAS are currently the subject of much toxicological research.
- To expand the review of new PFAS chemicals entering the marketplace now under the Toxic Substances Control Act (TSCA).
Short term actions include developing ways to more effectively analyze for additional PFAS chemicals, develop ways to manage PFAS chemical and site information, conducting research on effective cleanup approaches, and significant public outreach efforts. The EPA also listed several longer term items which focus on additional national testing of drinking water systems, identifying what impacts PFAS may have on ecoystems, and developing understanding of atmospheric or air transport of these chemicals.
What has the response been?
As noted above, response to the contents – particularly the timing and uncertainty – of the EPA’s plan have been mixed; some industry groups have issued statements supporting the plan, while several states and advocacy organizations have criticized the plan. These parties have indicated that the plan does not containing enough immediate action and expressed concern that the lack of concrete steps, such as beginning the process of setting MCLs and adding them to the CERCLA hazardous substances list, leave citizens exposed to the chemicals during the bureaucratic processes sketched out in the plan. The Action Plan itself does sketch out significant changes to the regulation of these complex emerging contaminants, however, and with a significant opportunity for public participation and advocacy. The recent introduction of this legislation (which also follows similar legislation introduced in the House in January) would accelerate that process and impact millions of citizens, as well as industry and business, around the country.
One area for potential advocacy, and an area where SLR’s experts have been accumulating experience for more than a decade, is the uncertainty surrounding the relative toxicity of various PFAS and the lack of information on the ecological toxicity of these compounds. EPA plans to address these data gaps by assessing the potential for various PFAS to bioaccumulate into aquatic and terrestrial organisms. This in turn would allow an understanding of potential risks from ingesting contaminated foods. Toxicological assessments are planned for ecological organisms to establish screening concentrations that would not impact the ecosystem. Another approach EPA is planning focuses on relative toxicity across different PFAS. This computational evaluation using structure and activity information will be done on as many as 150 different PFAS compounds, and results would be used to consider how to address simultaneous exposure to multiple PFAS. Current methods typically assume either all PFAS toxicity is additive, or potency is relative to the most toxic compound of the group. This change likely would impact regulatory levels and the amount of cleanup required at these sites.
SLR’s team of scientist and engineers include global leaders in science, engineering, and advisory solutions, and can help with PFAS or other environmental challenges. For further information, please don’t hesitate to contact: