EPA Might Finally Regulate PFAS But the Process Matters

By Genna Reed
The EPA announced last week that it is issuing a preliminary regulatory determination for public comment to set an enforceable drinking water standard to two of the most common and well-studied PFAS, PFOA and PFOS.
This decision is based on three criteria:
- PFOA and PFOS have an adverse effect on public health
- PFOA and PFOS occur in drinking water often enough and at levels of public health concern;
- regulation of PFOA and PFOS is a meaningful opportunity for reducing the health risk to those served by public water systems.
This is a good thing and should have happened sooner, but likely as a result of public pressure and the overwhelming evidence of harms caused by exposure to these chemicals, the EPA is officially embarking upon this long and arduous regulatory process with an uncertain outcome.
The process of setting such a standard, known as a Maximum Contaminant Level (MCL) under the Safe Drinking Water Act (SDWA) is a long one and we know that there are multiple decision points at which political interference, lack of transparency, or a failure to recognize the best available science can undermine such a process. If the EPA successfully sets a standard, it will mean that utilities will be required to monitor drinking water for PFOS and PFOA and use treatment techniques to keep levels below the standard, which will be especially helpful for communities in states that haven't set their own MCLs.
Here are some things to keep in mind and look out for as EPA begins its process to regulate PFAS in drinking water:
The SDWA Process Is Flawed
The Safe Drinking Water Act was signed into law by President Ford in 1974 and sets a regulatory process for setting drinking water standards. Then in 1996, Congress issued amendments which created a long list of hurdles that weakened EPA's ability to set health-protective standards for water contaminants. Some requirements include technology assessments and risk assessments that require the agency to state each significant uncertainty related to public health effects.
The amendments also require EPA to conduct a cost benefit analysis, which can weigh into the standard that is selected. In fact, EPA can choose to set a standard that "maximizes health risk reduction benefits at a cost that is justified by the benefits." As in all environmental and public health policy, it is much harder to quantify benefits to public health than it is to quantify costs to industry which makes this a natural place for industry to fight hard to document potential costs and advocate for a less stringent standard. A cost benefit analysis also opens up these regulations to more intense scrutiny from the Office of Management and Budget's Office of Information and Regulatory Affairs which has been known to delay rules or even make substantive changes to the scientific basis of regulations all without adequate transparency.
The Trump Administration’s Track Record on Science-Based Protections Speaks Volumes
Generally, it's hard to have faith in the Trump Administration's EPA which leads all other government agencies in the count of attacks on science and has made decisions that benefit industry over public health time and time again. We've also witnessed the EPA recently drop the ball on a drinking water decision.
A long-awaited proposed MCL for perchlorate was issued in summer 2019 after beginning the regulatory process in 2011. The level was over three times less protective than its health advisory set in 2008 and out of sync with its own analysis published in 2016 and the conclusion of a peer review panel convened in 2018 to review that report. So what went wrong?
After layers of scientific input, including the development of a model to quantify the relationship between perchlorate and fetal brain development that was reviewed by SAB and went through public comments, the agency dismissed key studies using inadequate rationales and set a less health-protective standard. As the SDWA requires the agency to use the "best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and data collected by accepted methods or best available methods," Administrator Wheeler's EPA, closely advised by former industry representatives will be deciding what acceptable science and methods are.
Integrity of Science Advice and Peer Review Processes Must Be Upheld
Advisory committees and independent peer review bodies should be employed by the EPA to provide objective checks on the work of the agency that are open and accessible to the public. But changes recently made to the EPA's Science Advisory Board including skewing membership toward industry and consultants, holding fewer meetings or delaying important meetings and key decisions, moving away from consensus-based reviews, and exerting more control from the administrator and chair suggest that future advisory committee proceedings related to examining the best available science on PFAS may not be the kind of independent science advice process we'd like to see.
Upcoming Changes to Restrict Science and to Alter Cost Benefit Analysis Could Make Things Worse
The EPA's so-called 'transparency' rule, the supplemental piece of which could be released any day now, would require underlying data to be made public would severely limit the agency's ability to use much of the human health data that has been accumulating since PFOA and PFOS have been studied, thus hindering EPA's ability to designate a strong maximum contaminant level. Over two dozen human health studies have been published in peer-reviewed journals since a settlement agreement was reached in a lawsuit against the maker of PFOA, DuPont, and people living near DuPont's West Virginia Washington Works Plant.
The studies rely on interviews, questionnaires, and blood samples from 69,000 individuals and examine links between C8 exposure and a variety of diseases and health outcomes. Because the information collected by researchers for these studies includes sensitive and private information of participants, it would not be possible to make the underlying data public in order to comply with EPA's proposed rule. This means that some of the best available science identifying probable links between PFAS and diseases such as thyroid disease, testicular and kidney cancer, pregnancy-induced hypertension and preeclampsia, and diagnosed high cholesterol could be left out of any future EPA decisions made on these chemicals. As a result, health decisions made on this class of chemicals would be wholly inadequate to protect exposed populations.
The agency is also considering changing how it conducts cost benefit analysis for regulations such as the SDWA, which threatens to tilt the scales toward reducing industry costs over maximizing societal and public health benefits.
PFOA and PFOS Are the Tip of the (Seemingly Endless) Fluorocarbon Chain
While the EPA is asking for more information on other PFAS substances, the agency's decision to add PFOA and PFOS to the Contaminant Candidate List leaves the hundreds of variations of PFAS that have been manufactured as replacements to PFOA and PFOS, including short-chain PFAS chemicals, in regulatory limbo. We know that PFOA and PFOS are only two of the many highly fluorinated chemicals contaminating our drinking water. A recent EWG analysis tested drinking water across the country for 30 different PFAS chemicals and found that on average, each sample had six or seven different compounds present.
This "fingerprint" of PFAS mixtures is commonly found near industrial and military contamination sites. Industry's path of regrettable substitutions has set our government up for a scenario of perpetual regulatory catch-up. The agency needs to follow the science showing that the class of highly-fluorinated chemicals are persistent and bioaccumulative because of the chemical structure inherent in each variety. Failure to do so will give us a wholly inadequate picture of PFAS contamination and leave many communities to deal with PFAS contamination without federal support.
States Should Continue to Lead
As EPA sets out on this potentially decades-long process that may or may not yield a protective standard, communities across the country are dealing with PFAS contamination now. States are acting to help regulate these chemicals and are making amazing progress. Congress has also stepped up and gotten some key PFAS-related provisions included in the National Defense Authorization Act and introduced as a part of the PFAS Action Act, like labeling PFAS as hazardous substances so that manufacturers are responsible for paying to clean up contamination.
We need our government to do everything it can to stop PFAS contamination and exposure from wreaking havoc in communities across the country. And we need to make sure that scientific integrity is upheld as it makes key regulatory decisions so that our kids and future generations will be safe from the health risks associated with these toxic chemicals.
Genna Reed is a lead science and policy analyst in the Center for Science and Democracy at the Union of Concerned Scientists.
Reposted with permission from Union of Concerned Scientists.
By Michael Svoboda, Ph.D.
Despite a journey to this moment even more treacherous than expected, Americans now have a fresh opportunity to act, decisively, on climate change.
The authors of the many new books released in just the past few months (or scheduled to be published soon) seem to have anticipated this pivotal moment.
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EcoWatch Daily Newsletter
By Katy Neusteter
The Biden-Harris transition team identified COVID-19, economic recovery, racial equity and climate change as its top priorities. Rivers are the through-line linking all of them. The fact is, healthy rivers can no longer be separated into the "nice-to-have" column of environmental progress. Rivers and streams provide more than 60 percent of our drinking water — and a clear path toward public health, a strong economy, a more just society and greater resilience to the impacts of the climate crisis.
Public Health
<img lazy-loadable="true" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTUyNDY3MC9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY2MDkxMTkwNn0.pyP14Bg1WvcUvF_xUGgYVu8PS7Lu49Huzc3PXGvATi4/img.jpg?width=980" id="8e577" class="rm-shortcode" data-rm-shortcode-id="1efb3445f5c445e47d5937a72343c012" data-rm-shortcode-name="rebelmouse-image" data-width="3000" data-height="2302" />Wild and Scenic Merced River, California. Bob Wick / BLM
<p>Let's begin with COVID-19. More than <a href="https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?name=styln-coronavirus&region=TOP_BANNER&block=storyline_menu_recirc&action=click&pgtype=LegacyCollection&impression_id=2f508610-2a87-11eb-8622-4f6c038cbd1d&variant=1_Show" target="_blank">16 million Americans</a> have contracted the coronavirus and, tragically,<a href="https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?name=styln-coronavirus&region=TOP_BANNER&block=storyline_menu_recirc&action=click&pgtype=LegacyCollection&impression_id=2f508610-2a87-11eb-8622-4f6c038cbd1d&variant=1_Show" target="_blank"> more than</a> <a href="https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?name=styln-coronavirus&region=TOP_BANNER&block=storyline_menu_recirc&action=click&pgtype=LegacyCollection&impression_id=2f508610-2a87-11eb-8622-4f6c038cbd1d&variant=1_Show" target="_blank">300,000 have died</a> due to the pandemic. While health officials encourage hand-washing to contain the pandemic, at least <a href="https://closethewatergap.org/" target="_blank">2 million Americans</a> are currently living without running water, indoor plumbing or wastewater treatment. Meanwhile, <a href="https://www.theguardian.com/us-news/2020/jun/23/millions-of-americans-cant-afford-water-bills-rise" target="_blank">aging water infrastructure is growing increasingly costly for utilities to maintain</a>. That cost is passed along to consumers. The upshot? <a href="https://research.msu.edu/affordable-water-in-us-reaching-a-crisis/" target="_blank">More than 13 million</a> U.S. households regularly face unaffordable water bills — and, thus, the threat of water shutoffs. Without basic access to clean water, families and entire communities are at a higher risk of <a href="https://www.americanprogress.org/issues/green/news/2020/08/05/488705/bridging-water-access-gap-covid-19-relief/" target="_blank">contracting</a> and spreading COVID-19.</p><p>We have a moral duty to ensure that everyone has access to clean water to help prevent the spread of the coronavirus. Last spring, <a href="https://nymag.com/intelligencer/2020/03/coronavirus-stimulus-bill-explained-bailouts-unemployment-benefits.html" target="_blank">Congress appropriated more than $4 trillion</a> to jumpstart the economy and bring millions of unemployed Americans back to work. Additional federal assistance — desperately needed — will present a historic opportunity to improve our crumbling infrastructure, which has been <a href="https://www.theguardian.com/us-news/2020/jun/23/millions-of-americans-cant-afford-water-bills-rise" target="_blank" rel="noopener noreferrer">grossly underfunded for decades</a>.</p><p>A report by my organization, American Rivers, suggests that <a href="https://s3.amazonaws.com/american-rivers-website/wp-content/uploads/2020/07/09223525/ECONOMIC-ENGINES-Report-2020.pdf" target="_blank" rel="noopener noreferrer">Congress must invest at least $50 billion</a> "to address the urgent water infrastructure needs associated with COVID-19," including the rising cost of water. This initial boost would allow for the replacement and maintenance of sewers, stormwater infrastructure and water supply facilities.</p>Economic Recovery
<p>Investing in water infrastructure and healthy rivers also creates jobs. Consider, for example, that <a href="https://tinyurl.com/y9p6sgnk" target="_blank">every $1 million spent on water infrastructure in the United States generates more than 15 jobs</a> throughout the economy, according to a report by the Value of Water Campaign. Similarly, <a href="https://tinyurl.com/yyvd2ksp" target="_blank">every "$1 million invested in forest and watershed restoration contracting will generate between 15.7 and 23.8 jobs,</a> depending on the work type," states a working paper released by the Ecosystem Workforce Program, University of Oregon. Healthy rivers also spur tourism and recreation, which many communities rely on for their livelihoods. According to the findings by the Outdoor Industry Association, which have been shared in our report, "Americans participating in watersports and fishing spend over <a href="https://s3.amazonaws.com/american-rivers-website/wp-content/uploads/2020/06/30222425/Exec-summary-ECONOMIC-ENGINES-Report-June-30-2020.pdf" target="_blank">$174 billion</a> on gear and trip related expenses. And, the outdoor watersports and fishing economy supports over <a href="https://s3.amazonaws.com/american-rivers-website/wp-content/uploads/2020/06/30222425/Exec-summary-ECONOMIC-ENGINES-Report-June-30-2020.pdf" target="_blank">1.5 million jobs nationwide</a>."</p><p>After the 2008 financial crisis, Congress invested in infrastructure to put Americans back to work. The American Recovery and Reinvestment Act <a href="https://thehill.com/blogs/congress-blog/economy-a-budget/25941-clean-water-green-infrastructure-get-major-boost" target="_blank">of 2009 (ARRA) allocated $6 billion</a> for clean water and drinking water infrastructure to decrease unemployment and boost the economy. More specifically, <a href="https://www.conservationnw.org/news-updates/us-reps-push-for-millions-of-restoration-and-resilience-jobs/" target="_blank" rel="noopener noreferrer">an analysis of ARRA</a> "showed conservation investments generated 15 to 33 jobs per million dollars," and more than doubled the rate of return, according to a letter written in May 2020 by 79 members of Congress, seeking greater funding for restoration and resilience jobs.</p><p>Today, when considering how to create work for the <a href="https://www.bls.gov/news.release/pdf/empsit.pdf" target="_blank" rel="noopener noreferrer">10.7 million</a> people who are currently unemployed, Congress should review previous stimulus investments and build on their successes by embracing major investments in water infrastructure and watershed restoration.</p>Racial Justice
<p>American Rivers also recommends that Congress dedicate <a href="https://s3.amazonaws.com/american-rivers-website/wp-content/uploads/2020/07/09223525/ECONOMIC-ENGINES-Report-2020.pdf" target="_blank" rel="noopener noreferrer">$500 billion for rivers and clean water over the next 10 years</a> — not just for the benefit of our environment and economy, but also to begin to address the United States' history of deeply entrenched racial injustice.</p><p>The <a href="https://www.epa.gov/npdes/sanitary-sewer-overflows-ssos" target="_blank" rel="noopener noreferrer">23,000-75,000 sewer overflows</a> that occur each year release up to <a href="https://www.americanrivers.org/2020/05/fighting-for-rivers-means-fighting-for-justice/#:~:text=There%20are%20also%2023%2C000%20to%2075%2C000%20sanitary%20sewer,to%20do%20with%20the%20mission%20of%20American%20Rivers." target="_blank" rel="noopener noreferrer">10 billion gallons of toxic sewage</a> <em>every day</em> into rivers and streams. This disproportionately impacts communities of color, because, for generations, Black, Indigenous, Latinx and other people of color have been <a href="https://www.scientificamerican.com/article/flooding-disproportionately-harms-black-neighborhoods/" target="_blank" rel="noopener noreferrer">relegated</a> to live in flood-prone areas and in neighborhoods that have been intentionally burdened with a lack of development that degrades people's health and quality of life. In some communities of color, incessant flooding due to stormwater surges or <a href="https://www.ajc.com/opinion/opinion-partnering-to-better-manage-our-water/7WQ6SEAQP5E4LGQCEYY5DO334Y/" target="_blank" rel="noopener noreferrer">combined sewer overflows</a> has gone unmitigated for decades.</p><p>We have historically treated people as separate from rivers and water. We can't do that anymore. Every voice — particularly those of people most directly impacted — must have a loudspeaker and be included in decision-making at the highest levels.</p><p>Accordingly, the new administration must diligently invest in projects at the community level that will improve lives in our country's most marginalized communities. We also must go further to ensure that local leaders have a seat at the decision-making table. To this end, the Biden-Harris administration should restore <a href="https://www.epa.gov/cwa-401#:~:text=Section%20401%20Certification%20The%20Clean%20Water%20Act%20%28CWA%29,the%20United%20States.%20Learn%20more%20about%20401%20certification." target="_blank">Section 401 of the Clean Water Act</a>, which was undermined by the <a href="https://earthjustice.org/news/press/2020/tribes-and-environmental-groups-sue-trump-administration-to-preserve-clean-water-protections#:~:text=Under%20Section%20401%20of%20the%20Clean%20Water%20Act%2C,seeks%20to%20undermine%20that%20authority%20in%20several%20ways%3A" target="_blank">Trump administration's 2020 regulatory changes</a>. This provision gives states and tribes the authority to decide whether major development projects, such as hydropower and oil and gas projects, move forward.</p>Climate Resilience
<p>Of course, the menacing shadow looming over it all? Climate change. <a href="https://media.ifrc.org/ifrc/wp-content/uploads/2020/11/IFRC_wdr2020/IFRC_WDR_ExecutiveSummary_EN_Web.pdf" target="_blank">More than 100 climate-related catastrophes</a> have pummeled the Earth since the pandemic was declared last spring, including the blitzkrieg of megafires, superstorms and heat waves witnessed during the summer of 2020, directly impacting the lives of more than <a href="https://media.ifrc.org/ifrc/wp-content/uploads/2020/11/IFRC_wdr2020/IFRC_WDR_ExecutiveSummary_EN_Web.pdf" target="_blank">50 million people globally</a>.</p><p>Water and climate scientist Brad Udall often says, "<a href="https://www.youtube.com/watch?v=xQhpj5G0dME" target="_blank">Climate change is water change</a>." In other words, the most obvious and dire impacts of climate change are evidenced in profound changes to our rivers and water resources. You've likely seen it where you live: Floods are more damaging and frequent. Droughts are deeper and longer. Uncertainty is destabilizing industry and lives.</p><p>By galvanizing action for healthy rivers and managing our water resources more effectively, we can insure future generations against the consequences of climate change. First, we must safeguard rivers that are still healthy and free-flowing. Second, we must protect land and property against the ravages of flooding. And finally, we must promote policies and practical solutions that take the science of climate disruption into account when planning for increased flooding, water shortage and habitat disruption.</p><p>Imagine all that rivers do for us. Most of our towns and cities have a river running through them or flowing nearby. Rivers provide clean drinking water, irrigate crops that provide our food, power our homes and businesses, provide wildlife habitat, and are the lifeblood of the places where we enjoy and explore nature, and where we play and nourish our spirits. Healthy watersheds help <a href="https://news.un.org/en/story/2020/03/1059952" target="_blank" rel="noopener noreferrer">mitigate</a> climate change, absorbing and reducing the amount of carbon in the atmosphere. Healthy rivers and floodplains help communities adapt and build resilience in the face of climate change by improving flood protection and providing water supply and quality benefits. Rivers are the cornerstones of healthy, strong communities.</p><p>The more than <a href="https://archive.epa.gov/water/archive/web/html/index-17.html" target="_blank" rel="noopener noreferrer">3 million miles</a> of rivers and streams running across our country are a source of great strength and opportunity. When we invest in healthy rivers and clean water, we can improve our lives. When we invest in rivers, we create jobs and strengthen our economy. When we invest in rivers, we invest in our shared future.</p>Trending
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