Per- and polyfluoroalkyl substances (PFAS) have been in the news increasingly in the last several years. On February 14, the U.S. Environmental Protection Agency (EPA) released its PFAS Action Plan, setting forth its roadmap for addressing these contaminants.
PFAS are manmade chemicals used in a variety of products and processes, including firefighting foam, water-repellent clothing, carpeting, and food packaging. Their chemical structure makes them resistant to heat, water, and oil, which in turn allows them to persist in the environment; they are sometimes called “forever chemicals.” Because of their intentional use in household items like carpet, nonstick cookware, and food packaging, and their unintentional presence in drinking water, they are ubiquitous, and the EPA estimates that most people in the U.S. have been exposed to them.
There are hundreds of chemicals in the PFAS group. The two manufactured most widely in the U.S. are perfluorooctanoic acid (PFOA) and perflurooctane sulfonic acid (PFOS). Other chemicals in the group include perflurononanoic acid (PFNA), perflurohexane sulfonic acid (PFHxS), and perflurodecanoic acid (PFDeA).
The human health risk from exposure to PFAS is still being studied. According to the Agency for Toxic Substances and Disease Registry (ATSDR), high levels of certain PFAS in the blood may increase cholesterol, decrease the body’s response to vaccines, increase the risk of thyroid disease, decrease fertility in women, increase the risk of high blood pressure and pre-eclampsia in pregnant women, and lower infant birth weight. ATSDR also reports that in animal studies, PFAS were found to cause liver damage and birth defects. The EPA, on the other hand, states in its Action Plan that adverse health effects vary based on the PFAS to which one was exposed, and could include developmental effects to fetuses and infants, cancer, liver effects, immune effects, thyroid effects, and others. Throughout its PFAS Action Plan, the EPA reiterates that the human health effects of exposure to PFAS are still being studied.
Despite their ubiquity and their risk to human health, PFAS are thus far unregulated, at least at the federal level. The EPA has taken some limited actions pursuant to its authority under both the Toxic Substances Control Act (TSCA) and the Safe Drinking Water Act (SDWA). Under TSCA, the EPA has issued various Significant New Use Rules (SNURs) for a number of PFAS. The most recent SNUR was proposed in 2015, and the EPA is still considering the public comments received thereon.
EPA action pursuant to the SDWA has been more substantial but still falls short of regulation. First, the EPA included PFOA and PFOS, as well as four other PFAS, in its third Unregulated Contaminant Monitoring Rule (UCMR3), which enabled it to collect data on those substances for use in its SDWA regulatory determination. Second, the EPA has used its SDWA Section 1431 authority to issue emergency orders for cleanup of drinking water contaminated by PFAS. Finally, in 2016, the EPA issued an unenforceable, non-regulatory lifetime health advisory for PFOS and PFOA of 70 parts per trillion.
The EPA’s PFAS Action Plan also points out that PFAS are considered to be a pollutant under both the Federal Water Pollution Control Act and the Comprehensive Environmental Response, Cleanup, and Liability Act (CERCLA), but that they are not a CERCLA hazardous substance. This is mere happenstance and not the result of any action by the EPA.
Given all of the above, there has been a growing cry for regulation of PFAS, particularly PFOS and PFOA in drinking water, from the public and legislators alike. The EPA evaluated the situation in conjunction with other federal agencies, states, tribes, and local communities, and the result was the EPA’s PFAS Action Plan. The Action Plan purports to be a “proactive, cross-agency approach to addressing PFAS,” the main points of which are:
1. Moving forward with the maximum contaminant limit (MCL) process for PFOA and PFOS.
2. Beginning the process for designating PFOA and PFOS as CERCLA hazardous substances, and developing interim groundwater cleanup recommendations.
3. Considering the addition of PFAS chemicals to the Toxics Release Inventory.
4. Considering a proposal to include PFAS in the next UCMR.
5. Continuing research on the human health effects of PFAS.
6. Using enforcement tools to address PFAS exposure in the environment.
7. Developing a collaborative risk communication toolbox.
The EPA classifies some of these actions as short-term (two years or less), and some as long-term (more than two years). Two years is a long time for communities already relying on bottled water because of PFAS contamination of their drinking water. More troubling than the timeline is that the plan essentially amounts to the EPA’s “commitment” to continue considering what to do about PFAS.
First, the “ongoing” EPA action under TSCA is continued consideration of public comments on a SNUR proposed four years ago and counting. The 2015 SNUR was proposed to complement an earlier program to phase out “long-chain” PFAS and replace them with other substances–in some cases, other PFAS that degrade into the very contaminants they were meant to replace. Until the proposed SNUR becomes final, manufacturers are not required to notify the EPA of the new use, and the EPA therefore cannot make a risk determination under TSCA. Without a date for completion of public comment review and therefore finalization of the SNUR, this portion of the EPA’s plan is illusory.
With respect to the process to designate PFAS as a CERCLA hazardous substance, the EPA may get a little help from Congress. The PFAS Action Act of 2019 (H.R. 535), introduced on January 14, 2019, would require the EPA to designate PFAS as hazardous substances under CERCLA within one year of the Act’s passage. The 11 bill co-sponsors are primarily from states where emergency orders have been issued to address PFAS contamination in drinking water. Whether they will be able to garner enough support among legislators from as-yet unaffected states to pass the law remains to be seen. Even if they do, it will be a year after any enactment before the EPA makes the required designation, assuming the statutory timeline is met.
The most problematic parts of the EPA’s plan, however, relate to the tease of eventual regulation of PFAS, especially PFOS and PFOA, under the SDWA. UCMR3 was arguably a precursor to establishment of an MCL for PFOS and PFOA. What the Action Plan promises, however, is not an MCL, but rather that the EPA will follow the process for setting an MCL. There is no guarantee that the end result of that process will actually be an enforceable regulatory limit on PFAS in finished drinking water. In fact, I see two significant obstacles to achieving that end.
The first obstacle to SDWA regulation of PFOS and PFOA is the standard set forth in the process itself. After all is said and done, an MCL will only be set if “in the sole judgment of the Administrator, regulation of  a contaminant presents a meaningful opportunity for health risk reduction for persons served by public water systems.” As discussed above, PFAS are ubiquitous. They are in your nonstick griddle. They are in your microwave popcorn. They are in the carpet on which your children play. They are in the breast milk of nursing mothers who have been exposed to them. They are in the drinking water of anyone whose water comes from a source contaminated by them. The EPA’s PFAS Action Plan notes almost in passing that drinking water contamination by PFAS is a localized phenomenon associated with a specific source – implying that the answer is eliminating the source, not regulating the drinking water. The ubiquity of PFAS makes it unlikely that a national drinking water regulation would provide “a meaningful opportunity for health risk reduction.”
The second obstacle to SDWA regulation of PFOS and PFOA is the frequent leadership turnover at the EPA. While this is a recent trend and by no means confined to the EPA, it is problematic for regulation of PFAS in drinking water because of where the process places the authority for the ultimate decision: “in the sole judgment of the Administrator.” Even if the current Administrator might judge that a national drinking water regulation would reduce human health risk from exposure to PFAS, his tenure is uncertain and the judgment of the next Administrator, whose tenure also is likely to be uncertain, may be vastly different.
The EPA’s PFAS Action Plan looks good on the surface–it appears to be a multi-pronged attack on a persistent, emerging contaminant with human health risk. On closer examination, though, it is unlikely to result in any real action other than controlling the message communicated to the public from various federal agencies – and that message increasingly appears to be that the EPA has no real intention of providing any relief to this growing public health issue.
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 ATSDR Perfluoroalkyls – ToxFAQs (https://www.atsdr.cdc.gov/toxfaqs/tfacts200.pdf, last visited Feb. 20, 2019).
 Most recently, a group of 20 U.S. Senators wrote to the EPA Acting Administrator Andrew Wheeler, urging the EPA “to develop enforceable federal drinking water standards for PFOA and PFOS as well as to institute immediate actions to protect the public from contamination from additional per- and polyfluoroalkyl substances (PFAS).” United States Senate letter to The Honorable Andrew Wheeler, Feb. 1, 2019 (available at https://www.eenews.net/assets/2019/02/01/document_gw_12.pdf, last visited Feb. 20, 2019).
 42 U.S.C. § 300g-1(b)(1)(A)(iii).