Chemicals, Regulatory Developments

The Persistence of PFAS: The ‘Forever Chemicals’ Coming Under Regulatory Scrutiny

Environment, health, and safety (EHS) professionals and their organizations should be following the ongoing conversation surrounding per- and polyfluoroalkyl substances (PFAS). We continue to learn more about this large family of chemicals and their impact on both human health and the environment—and PFAS are increasingly coming under more expansive regulatory scrutiny.

Chemical chain

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According to the U.S. Environmental Protection Agency’s (EPA) February 2019 PFAS Action Plan, over 4,000 PFAS may have been manufactured and used in a variety of industries around the world since they were first synthesized in the 1940s. The EPA’s Toxic Substances Control Act (TSCA) Chemical Substance Inventory lists about 1,200 PFAS, approximately half of which are known to be commercially active within the last decade.

PFAS are or have been commonly used in:

  • Nonstick cookware;
  • Water-repellent clothing;
  • Stain-resistant fabrics and carpets;
  • Some cosmetics;
  • Products that resist grease, water, and oil; and
  • Fire suppressants used at U.S. military installations and civilian airports and by state and local fire departments.

More than 40 bills have been introduced in the current Congress to get federal agencies to do more to regulate PFAS to minimize the risks to environmental and human health. So why, after so many decades of production and use, are PFAS now attracting so much attention?

Forever Chemicals

One reason for the attention to PFAS is their sheer persistence. PFAS have aptly been dubbed “forever chemicals” because of their resistance to degradation—a quality that has made them useful in certain products. But persistence is a double-edged sword. When PFAS enter the human body, they stay there for a long time—up to 8 years by some estimates—and this persistence also means that the chemicals have time to accumulate in the body.

The Agency for Toxic Substances and Disease Registry (ATSDR) says that most people in the United States have one or more specific PFAS in their blood, especially two in particular: perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). These are also two most commonly studied PFAS, and in May 2016, the EPA established lifetime health advisory levels for PFOA and PFOS at 70 parts per trillion (ppt), separately or combined.

However, uncertainty remains about whether (and to what extent) PFAS put people at risk and which specific PFAS cause the most harm. Many phaseouts of the chemicals (including by 3M, which, for a long time, was the only company manufacturing PFAS) are based on potential risks and are described as “precautionary” in nature.

So, What Do We Know?

Scientists and health researchers have distinguished between the risks associated with PFAS with longer fluorinated carbon chains and shorter-chain PFAS. Longer chains are more persistent in the environment and therefore likely to be a higher risk to health. The ATSDR says that some of the potential risks of certain PFAS may include:

  • An effect on the growth, learning, and behavior of infants and older children;
  • Lowering a woman’s chance of getting pregnant;
  • Interference with the body’s natural hormones;
  • An increase in cholesterol levels;
  • Effects on the immune system; and
  • A potential increase in the risk of cancer.

The ATSDR further states, “Scientists are still learning about the health effects of exposures to mixtures of PFAS. For the most part, laboratory animals exposed to high doses of one or more of these PFAS have shown changes in liver, thyroid, and pancreatic function, as well as some changes in hormone levels. Because animals and humans process these chemicals differently, more research will help scientists fully understand how PFAS affect human health.”

While there are still a lot of “maybes” in the discussion, the evidence suggests that the current regulatory attention directed toward these chemicals is warranted.

Recent Regulation

Recently, the House passed the PFAS Action Act of 2019 (H.R. 535) by a vote of 247 to 159. The bill would amend five environmental statutes—the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund); Safe Drinking Water Act (SDWA); TSCA; Clean Air Act (CAA); and Emergency Planning and Community Right-to-Know Act (EPCRA)—by requiring that the EPA take actions to regulate PFAS and, particularly, PFOA and PFOS.

For many in Congress, action is long overdue. Frank Pallone (D-NJ), chair of the House Energy and Commerce Committee, said that the EPA’s 2019 PFAS plan “was woefully inadequate, and since that time, we’ve learned that EPA is not even keeping the weak commitments it made in that plan. The EPA failed to meet key end-of-year 2019 deadlines. It failed to produce a regulatory determination for PFOA and PFOS in drinking water. It failed to produce hazard determinations for these two chemicals under Superfund. And it failed to initiate reporting under the Toxics Release Inventory [TRI].”

H.R. 535 would require implementation of those three actions, plus much more. (It’s worth noting that the EPA has since announced three actions regarding PFAS in February 2020.)

Here are more specifics on H.R. 535:

  • The bill designates certain PFAS as hazardous substances, thereby requiring remediation of releases of PFAS into the environment under the Superfund program. Within 5 years, the EPA must determine whether the remaining PFAS should be designated as hazardous substances, individually or in groups.
  • Under TSCA, the EPA must require that comprehensive toxicity testing be conducted on all PFAS. Rules would require the development of information by any person who manufactures, processes, or intends to manufacture or process a PFAS.
  • Currently under TSCA, unless requirements for an exemption are met, persons planning to manufacture a chemical substance not listed on the EPA’s inventory list or to manufacture or process a chemical substance for a significant new use must comply with certain notification requirements. The bill prohibits PFAS from being exempted from these requirements.
  • For 5 years, the EPA would prohibit the manufacture, processing, and distribution of a PFAS not listed on the TSCA inventory or the manufacture or processing of a PFAS for a significant new use.
  • Under the SDWA, the EPA would promulgate a national primary drinking water regulation for certain PFAS.
  • The EPA would include certain PFAS in the list of unregulated contaminants to be monitored by specified public water systems and to be included in the national drinking water occurrence database.
  • The bill would add specified PFAS to EPCRA’s TRI, thereby requiring entities subject to the TRI requirements to report information related to their handling of those PFAS.
  • Under the CAA, the bill would require that the EPA issue a final rule adding PFAS to the list of hazardous air pollutants and revise the list of air pollution sources within 365 days after issuing the rule to include categories and subcategories of major sources and area sources of PFAS.

These is but a small sampling of the contents of H.R. 535; other directions and requirements for the EPA are further spelled out in the bill, including the regulation of disposal procedures for materials containing PFAS, as well as a requirement that the EPA issue guidance on minimizing first responder use of firefighting foam containing any PFAS without jeopardizing firefighting efforts.

This shifting regulatory landscape requires diligence in environmental management and compliance; ensure you have the right solutions to help you stay one step ahead.