ILMA Compoundings - April 2019 - 44

WASHINGTON LANDSCAPE

EPA Takes Aim at PFAS
By Matthew Levetown

P

er- and polyfluoroalkyl substances
(PFAS) have exploded into the
news recently as an "emerging
contaminant," including as the subject
of the Netflix documentary The Devil
We Know. PFAS, which have been
manufactured for more than 50 years,
are everywhere, in seemingly everything
and in nearly everyone.
The "PFAS" label covers more than
5,000 man-made chemicals with multiple
fluorine atoms that are widely used globally to repel both water and oil, reduce
friction and provide heat resistance.
Such uses, coupled with waste disposal,
have led to PFAS finding their way into
drinking water and groundwater.
Two PFAS compounds, perfluorooctanoic acid (PFOA) and
perfluorooctanesulfonic acid (PFOS),
are the focus of the Environmental
Protection Agency's (EPA's) major
PFAS action plan, a national classaction lawsuit and state regulatory
actions. DuPont and 3M produced the
first PFAS commercially in the early
1950s, which begs the question: Why
the regulatory response now?
In 2001, a lawsuit against DuPont
alleged that the chemical maker had
known the health risks of PFOA since
the 1970s but failed to report those risks
to the EPA. As a result, PFOA was not
regulated by the EPA under its Toxic Substances Control Act (TSCA) authorities.
In 2004, following the revelation
that PFOA was in numerous water
supplies, a class-action lawsuit against
DuPont resulted in a "medical
monitoring settlement," where DuPont
paid for an epidemiological study
of 70,000 people who consumed
PFOA-containing water. The study
concluded that a "probable link" existed

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between PFOA and numerous health
conditions. Currently, a number of
national class-action lawsuits have been
filed against PFAS manufacturers.
PFOS and PFOA are the main
targets of regulation and investigation,
due in large part to their formerly
widespread use and their persistence
in the environment. Even though
both PFOS and PFOA are no longer
manufactured, it is this persistence in
the environment and humans that is
driving the regulatory efforts. In addition, other PFAS materials, such as
perfluorobutane sulfonate (PFBS), or
those materials referred to as "GenX,"
are getting increased scrutiny.
Because of the issues associated with
PFAS, public health advocates and
environmentalists have asked the EPA
to heavily regulate the compounds
and initiate actions to hold parties
accountable for releases.
Last year, the EPA hosted a PFAS
national leadership summit to hear from
stakeholders and to present information
on past, short-term and long-term plans
for addressing PFAS at the federal level.
After collecting comments and data
across the country, the EPA recently
announced a comprehensive national
plan that includes research, monitoring
and enforcement. Consumer groups,
public health advocates and environmentalists, however, have accused the
EPA of "kicking the can down the
road" by failing to provide more than
vague comments about what shape
enforcement and cleanup operations will
take; the operations are expected to be
announced at the end of the year.
The agency started using TSCA to
address future manufacturing, including proposing Significant New Use

Rules (SNURs) for both PFOA and
PFOS. If the EPA chooses to further
regulate PFAS, including remedying
past pollution, it can do so under a
few different statutory frameworks.
The Safe Drinking Water Act allows
the EPA to set maximum contaminant levels (MCL) for drinking water
and monitor public water supplies.
The agency has begun the process of
determining if an MCL is needed. As
it currently stands, the EPA has issued
nonregulatory health advisories for
PFOA and PFOS at 70 parts per trillion (ppt). By contrast, a 2018 report
from the Agency for Toxic Substances
and Disease Registry said that the risk
level for exposure should be 7 ppt of
PFOS and 11 ppt for PFOA.
The second statute that the EPA
is considering for PFAS is the Comprehensive Environmental Response,
Compensation and Liability Act
(CERCLA, also known as Superfund).
CERCLA allows for the EPA and
private parties to seek contribution for
the cleanup of highly contaminated sites
and neighboring communities. Sites
such as airports and military bases would
be top-priority sites, but manufacturing
sites with PFAS could be brought in.
Last, the EPA is considering
enforcement under the Clean Air Act,
which affects industrial facilities that
release airborne pollutants. Manufacturers
have stopped production of PFOA
and PFOS, but the act would allow
the EPA to regulate other PFAS.
Alongside these federal regulations, 21
states have proposed or adopted PFAS
legislation and regulations. Many states
decided to create their own enforceable
rules given the length of time it has
taken the EPA to get to this point.
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