The Pervasive Problem of Forever Chemicals

In March 2023, the Environmental Protection Agency (EPA) announced that it would propose its first-ever drinking water standards for man-made contaminants known as perfluoroalkyl and polyfluoroalkyl substances (PFAS). EPA’s proposal represents the latest development from the agency’s PFAS Strategic Roadmap, a series of regulatory goals and timelines intended to address rising national concern over these pervasive contaminants.

PFAS chemicals, originally developed in the 1930s, have been long lauded for their utility in a wide variety of products and applications. PFAS chemicals are valued for many of the same qualities that make them potential environmental and health hazards: They are generally non-reactive, heat- and oil-resistant, and stable over long periods. Due to their chemical stability, they are also bioaccumulative, meaning that they easily build up in the bodies of living organisms, including humans.

PFAS manufacturers had obtained evidence of the toxicity of PFAS chemicals by 1970, but reportedly failed to inform regulators until internal studies were subpoenaed during a lawsuit in the early 2000s. Since this information became public, researchers have linked PFAS chemicals with liver disease, thyroid dysfunction, and certain cancers.

The Centers for Disease Control and Prevention (CDC) estimates that most Americans have been exposed to one or more PFAS chemicals. The CDC acknowledges that exposure may occur through contact with food packaging, stain-resistant carpeting, water-repellant clothing, contaminated soil, or consumption of animal products derived from PFAS-exposed fish or livestock.

The U.S. Department of Defense reports that the military’s use of PFAS-based firefighting foams contributed to the exposure of over 170,000 service members and caused contamination at hundreds of military sites, remediation of which could cost more than $30 billion. In addition, some studies have shown significant levels of PFAS chemicals present in agricultural products from highly contaminated regions.

Over the last two decades, rising public awareness has generated a flood of scholarly research, a documentary, a major motion picture, and a series of prominent lawsuits. Both state and federal lawmakers have proposed limiting the use and discharge of PFAS chemicals, but some commentators and policymakers argue that available health and environmental data do not justify the proposed restrictions. For example, after EPA proposed requiring companies that have discharged two specific PFAS chemicals into hazardous waste sites to pay for cleanup costs, U.S. Senator Cynthia Lummis (R-Wyo.) responded by introducing a series of bills to limit liability for utility companies, airports, farmers, and the military. Some expect that, if finalized, EPA’s proposed drinking water standards will face legal challenges from industry groups.

In this week’s Saturday Seminar, The Regulatory Review summarizes the work of scholars discussing the causes and impacts of PFAS contamination and what appropriate regulatory solutions might entail.

• Disparities in PFAS levels in drinking water systems help illustrate how low-income communities and communities of color are disproportionately exposed to environmental pollutants, argue Jahred Liddie and Elsie Sunderland of Harvard University and Laurel Schaider of the Silent Spring Institute in an article in Environmental Science & Technology. Liddie, Sunderland, and Schaider find that water systems serving Black and Latino residents are more likely to host sources of PFAS contamination—such as industrial sites, airports, and military training areas—and that the presence of these contaminant sources is positively correlated with detectable PFAS concentrations in local drinking water. Liddie, Schaider, and Sunderland argue that sociodemographic concerns should inform the development of risk mitigation strategies for drinking water contamination.
• According to a National Conference of State Legislatures (NCSL) report, individual states are taking ownership over PFAS regulation in the absence of what some states see as a sufficiently strong federal response. For example, NCSL reports that, in 2022, state legislators considered over 200 bills pertaining to PFAS in firefighting foam, food packaging, and consumer products. NCSL notes that several state agencies recently adopted standards for acceptable PFAS levels in drinking water, some of which are even stricter than EPA guidance. NCSL also reports that in addition to millions of dollars allocated by state legislatures to cleaning up existing contamination, at least nine states have sued to recover damages from alleged polluters.
• In the Military Law Review, published by the Judge Advocate General’s Legal Center and School, Major Keaton Norquist argues that designating even some PFAS as “hazardous substances” would increase PFAS cleanup liability for the Defense Department under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA governs the responsibilities of polluters to address the environmental contamination they caused. In his article, Norquist notes that reclassifying PFAS chemicals may force the federal government to make tradeoffs between funding important Defense Department mission requirements and meeting extensive environmental cleanup rules. Norquist analogizes concerns over PFAS chemicals to the concerns that led to the Base Realignment and Closure (BRAC) process, which has facilitated the Defense Department’s transfer of outdated or unused property to private owners. According to Norquist, deeming a property “contaminated” and triggering CERCLA liability would undermine the BRAC process in the future by slowing down or even halting property transfers, much to the detriment of the Defense Department’s economic and national defense objectives.
• In the Environmental Law Review at the Pace University Elizabeth Haub School of Law, Molly Carey of Vermont Law and Graduate School’s Center for Agriculture and Food Systems explains how toxic levels of PFAS chemicals accumulate in croplands and livestock. She writes that one cause of this accumulation is the failure of current water treatment practices to neutralize man-made chemicals, which leaves PFAS chemicals and other toxins in the resulting sewage sludge. Carey goes on to explain that farmers, unaware of the presence of these contaminants, use this sludge as a cheaper alternative to synthetic fertilizer, causing farmland contamination. She concludes by proposing that EPA take steps to remediate the issue and prevent future contamination, such as by setting national standards for classifying PFAS chemicals, banning the use of contaminated sewage sludge, and providing assistance to affected farmers.
• In a recent article in Environmental Science and Technology, Simona A. Bălan and several coauthors argue that allowing private entities to control the development, application, and disposal of new and sometimes hazardous chemicals has left regulators unable to assess risks and prevent harmful contamination. In response, Bălan and her coauthors call on regulators to implement the “essential use approach,” which would permit the use of potentially hazardous chemicals only in the absence of viable alternatives and when required to preserve human health and safety. Bălan and her coauthors argue that one advantage of this approach is that it would allow regulators to phase out the use of a hazardous class of PFAS chemicals in all but a handful of applications without disrupting private supply chains.
• In a recent note in Environs, Samuel Boden argues that the federal chemical regulatory scheme has been inadequate in preventing toxic environmental harms. Using PFAS chemicals as a case study, Boden examines how federal provisions such as those in the Safe Drinking Water Act, CERCLA, and the Toxic Substances Control Act, in tandem with external pressures from regulated entities such as chemical manufacturers and public utilities, create a burden that EPA must overcome before enacting regulations. As an alternative, Boden proposes that Congress follow the example of the European Union’s Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulation and the California Green Chemistry Initiative. Those alternative policies adopt the “precautionary principle,” imposing preemptive controls whenever an activity presents a potential threat to public health or environmental well-being.