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For many years, per- and polyfluoroalkyl substances (PFAS) have been ubiquitous in American commerce and industry. That ubiquitous use, and the fact that PFAS chemicals do not break down in the environment, has led to the presence of PFAS in groundwater to varying degrees throughout the country. As a result, the US Environmental Protection Agency (EPA) has turned its full attention to PFAS regulation. In fact, EPA issued a PFAS Strategic Roadmap that sets timelines by which EPA plans to take specific actions, as it states, “to safeguard public health, protect the environment, and hold polluters accountable.” Pursuant to the Roadmap, the EPA issued interim health advisories on June 15, 2022, in which they advised that the safe lifetime drinking level for PFAS chemicals are as low as .004 parts per trillion (ppt) for perfluorooctanoic acid (PFOA) and .02 ppt for perfluorooctane sulfonic acid (PFOS). To put that in context, one should understand that a level of .004 ppt equates to 1 drop out of 4.5 billion gallons of water., and that such miniscule levels are undetectable by current testing instruments, essentially making it zero.

According to the EPA, its interim health advisories are determined based on review of all available science by the EPA’s Science Advisory Board. It is unclear, however, on what the Science Advisory Board relied in reaching its conclusions concerning the level of exposure at which to set the advisory limit, as there is not only no current epidemiological studies that demonstrate that PFAS chemicals actually cause any adverse health consequences, there are certainly no scientific studies that support a level of exposure near zero.

The EPA’s interim health advisories are not regulations, and are not enforceable. They do, however, portend the maximum contaminant levels (MCLs) that the EPA is considering and may eventually enact for drinking water. The EPA is scheduled to issue its proposed regulatory level in fall 2022—only months away—and the rule is expected to go into effect in 2023.

In setting the MCLs, the EPA attempts get the MCL as close to the health advisory limit as feasible. Unlike with health advisories, though, the EPA must prepare a health risk reduction and cost analysis (HRRCA), which takes into account the quantifiable and non-quantifiable benefits that will result from the proposed standard, as well as the increased costs that will result from the proposed drinking water standard. It does not, however, require EPA to consider the benefits in the use of PFAS, including improved safety, durability and fuel efficiency in applications such as cars, airplanes, buildings and electronics, not to mention firefighting where its use is still mandated.

Should the EPA enact drinking water standards near the current health advisory limits, it is likely that the vast majority, if not all, water systems in the United States will require costly remediation. The State of New York estimates that remediation of PFAS in the state’s drinking water to a level of 4 parts per trillion, a standard 1,000 time less strict than the amount
Continue Reading Threat of Zero-Allowance Regulations Loom for Forever Chemicals

Every year, the federal government passes the National Defense Authorization Act, allocating the budget for the Department of Defense (DoD). In this year’s bill, the US House of Representatives voted to require the DoD to monitor and reduce potential contamination by per- and poly-fluoroalkyl substances (PFAS). PFAS are a group of man-made chemicals commonly used as surfactants in both industrial and consumer goods, and are known for their extreme biopersistence. The widespread use of PFAS over the course of the past fifty years has led to groundwater contamination of varying degrees throughout the United States, including groundwater contamination near military sites where PFAS-containing products are frequently used as fire suppressants. Individuals who are exposed to high levels of products that contain PFAS—such as members of the military who regularly work with PFAS-containing fire suppressants—are reported to have higher levels of PFAS in their blood. Specifically, the bill addresses regulation and reporting of PFAS by the military.

Under the new bill, the DoD must report on (1) PFAS destruction alternatives to incineration, (2) sources of PFAS contamination at military sites and (3) the progress made by the DoD to replace PFAS in firefighting foam for military applications. Currently, the only fire suppressants that meet military performance standards contain PFAS. The legislation further requires the DoD to test PFAS in drinking water in department run schools. Finally, the DoD must track health problems of service members and veterans, provide blood testing to exposed service members, and notify service members and their families about their exposure to PFAS and the potential health risks.

If passed, the Environmental Protection Agency will publish criteria for water quality and set discharge limits for industrial uses of PFAS. The military would then be required to follow state clean-up regulations for PFAS contamination.

While this legislation has passed the House, it must still pass the Senate and be signed into law by the White House. If these provisions remain in the final bill, the effects will be immediately felt throughout the nation. Notably, the EPA will regulate how much PFAS can enter the environment moving forward, and require the military to remediate and develop alternatives. Recent pronouncements by the EPA regarding what it would view as “acceptable” levels in drinking water—which are near zero—suggest that, if and when this legislation is passed, the government sector, private sector and the military will be engaged for years to come in extensive and costly remediation efforts nationwide.
Continue Reading US House Passes Legislation Requiring Extensive Reporting of PFAS by Department of Defense