Experts discuss regulatory options for PFAS chemical contamination control.
Every day, as many as 110 million Americans may be consuming water polluted with human-made chemicals.
Colloquially known as “forever chemicals,” perfluoroalkyl and polyfluoroalkyl substances (PFAS) are a group of contaminants that can be found in many common products and drinking water. They do not break down under natural conditions. Instead, they accumulate over time in the environment and even in human bodies. Studies of laboratory animals suggest that large amounts of PFAS may affect growth and development, damage immune systems, and even lead to cancer.
In the 1940s, major chemical manufacturer Dupont invented PFAS to produce a coating-like substance, Teflon, for cookware. Over the last 80 years, PFAS applications expanded from cookware to include food wrappers, furniture, clothing, and cosmetics. Today, the company 3M predominantly manufactures PFAS for product applications.
A 3M-commissioned study found that 3M was aware of PFAS in food products since as early as 2001. In addition, the Environmental Working Group published a timeline of documented health risks dating back to the 1950s. Despite scientists and organizations calling for federal control of PFAS, the U.S. Environmental Protection Agency (EPA), U.S. Food and Drug Administration (FDA), U.S. Department of Defense, and the Federal Aviation Administration (FAA) failed to act for decades.
EPA began investigating PFAS in the early 2000s but has only recently made progress towards regulating them. In January 2021, EPA posted an advance notice of proposed rulemaking seeking comments on potential PFAS regulation. In October, EPA Administrator Michael Regan announced that PFAS regulation is a priority and urged the Defense Department, FDA, and FAA to take action as well. Regan also released a roadmap for setting a national standard for the maximum level of PFAS that can be present in drinking water, a measure advocated strongly by advocates.
Other efforts to regulate PFAS emerged during the years without federal standards or regulation, including medical monitoring through toxic tort litigation and state-level regulation. State actions include maximum contaminant standards, health advisories, and funds for PFAS cleanup.
In the coming years, civic organizations, industry players, and consumers will keep their eyes on executive agencies as the federal government begins to take action on this public health crisis.
This week’s Saturday Seminar discusses potential routes for regulating PFAS chemicals.
- In an article published in the Belmont Law Review, Leticia M. Diaz and Margaret R. Stewart of the Barry University School of Law argue that federal efforts to address PFAS do not go far enough, leaving states to fill in regulatory gaps. Diaz and Stewart suggest that such a framework “has led to backward-looking legal considerations that are aimed at fixing or mitigating the results rather than preventing the problem to begin with.” They recommend that policymakers adopt the Precautionary Principle—a legal approach that promotes taking preventative rather than reactive measures to address threats—as a means of effectively regulating the use of PFAS.
- In a paper for ECOS, project manager Sarah Grace Longsworth compares state approaches to PFAS regulation in the absence of federal action. Twenty-two states have initiated some form of PFAS regulation with various drinking water, air, and soil requirements. Some states plan to move forward with their self-assessed maximum contaminant levels, while others are waiting to follow guidelines from federal agencies. Numerous states also call for a classification of PFAS as a hazardous substance by EPA, which would allow them to rely on federal funding instead of further draining state resources.
- Despite the danger of “forever chemicals,” federal environmental law has failed to protect the public from the growing PFAS toxicity crisis, argue Mark Nevitt of the Syracuse University College of Law and Robert P. Percival of the University of Maryland Francis King Carey School of Law. In a forthcoming Wake Forest Law Review article, Nevitt and Percival suggest that the current U.S. regulatory framework focuses primarily on legacy chemicals, leaving regulators to try and catch up to new chemical developments. Nevitt and Percival offer proposals for a proactive approach to PFAS regulation. For example, they advocate adoption of a chemical class-based approach that regulates PFAS before they enter streams of commerce.
- In an article in the Journal of Science Policy & Governance, William S. Dean of the University of Michigan and coauthors devise a regulatory framework to better address the harms posed by PFAS. Dean and his coauthors argue that EPA should create a formal class definition for PFAS rather than relying on individual analysis of each compound, which would allow for more impactful regulation. They also recommend that EPA ban any nonessential use of PFAS and promote the adoption of less toxic, substitute chemicals by imposing stricter toxicity and biodegradability standards on manufacturers. Because there are instances in which the use of PFAS is essential and no substitute exists, Dean and his team also suggest that waste containing PFAS be labeled as hazardous material.
- Health disparities among disadvantaged communities may be exacerbated by disproportionate exposure to PFAS, argue Jennifer Black and coauthors. In an article in Health Matrix, Black and her coauthors describe current state and federal efforts to regulate PFAS through a health justice lens. Because federal health advisories on acceptable PFAS levels are unenforceable guidelines, the primary responsibility for monitoring PFAS exposure rests with the states, Black’s team explains. While some states have adopted the recommendations contained in the federal guidelines, others have gone further by setting lower acceptable thresholds and monitoring private wells in addition to public water sources. Black and her coauthors argue that these measures can help remedy the disproportionate impact of PFAS, as communities of color are more likely to be excluded from municipal water services. Black’s team urges that wherever PFAS policy is created, the needs and safety of communities disproportionately exposed to these chemicals should be paramount.
- In an article in Environment and Society, Daniel Renfrew of West Virginia University’s Department of Sociology and Anthropology and Thomas W. Pearson of the University of Wisconsin, Stout discuss the implications of PFAS pollution through the lens of social responses. Renfrew and Pearson found that, as a result of “toxic events,” community responses ranged from hopelessness and resignation to political mobilization. Renfrew and Pearson argue that the community response depends on many factors including race, class, and local history of activism. The authors note that public recognition of the danger of PFAS through forums and legal claims can mobilize communities to fight against PFAS producers. They argue that regulatory responses to the slow violence of PFAS should include social-science lessons and intersectionality considerations.
The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.