Regulation of PFAS won’t be easy, but it’s a fight worth fighting
Old landfills across Connecticut are leaking highly toxic chemicals. Last year, there were multiple spills of thousands of gallons of hazardous firefighting foam containing per- and polyfluoroalkyl substances (PFAS) that reached the Farmington River. In the aftermath of the spill, high levels of PFAS have been found in drinking water systems serving Enfield, Greenwich and in two private wells in Willimantic.
PFAS are a group of synthetic chemicals containing, by various estimates, 3,000-5,000 different substances. Only two of them, perfluoroctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) have been studied.
One of the most prolific vectors of PFAS contamination within Connecticut and nationwide is the military use of aqueous firefighting foams. But the synthetic chemicals have also been used in plastics, outdoor gear, cookware, carpets, cosmetics and food containers for their resistance, non-stick, water repellent and anti-grease properties.
The Federal Environmental Protection Agency issued a PFAS Action Plan in February 2019. Yet, after PFAS contamination became a major problem, Connecticut did not wait for the EPA to study and make recommendations on the exposure, use, and disposal of the emerging environmental threat. In November 2019, Gov. Ned Lamont took an important step forward and issued the state’s own “PFAS Action Plan”.
The Action Plan identified several recommended actions, including determining whether a maximum contaminant level (MCL) for PFAS in drinking water (drinking water standard) should be promulgated and testing of water systems. Although some of the recommendations would cost millions of dollars, this was a good start towards a fast-walk cleanup of the state’s drinking water.
PFAS does the job they are intended for so well and has been used on such a large scale that there are measurable levels of these chemicals in the blood of almost every person in the world. Lately, more and more studies have made associations between PFAS exposure and lowered birth weights, kidney cancer, thyroid disease and effects on the immune system.
“Because PFAS are carcinogens which persist in the human body for up to five years following exposure, the risk of someone who is regularly exposed to these chemical compounds – either due to their occupation or by drinking contaminated water – for developing a disease such as cancer is significantly high,” Don Blankenship, attorney, says.
Although novel regulatory approaches are important and scientifically sound steps, they are not fast or easy, presenting issues that will take time to analyze.
First, the reality is that not all states have large budgets, scientific expertise, and programs necessary to develop their own MCL. After completing scientific analysis and risk assessments, New Jersey legislators were the first to establish a firm regulatory MCL for PFAS. As such, New Jersey’s scientific leadership is recognized nationally. Another state that spends approximately $26 million a year on its MCL program is California. Other states are also working to adopt MCLs or moving ahead to do the same.
Second, regulators do not yet agree on appropriate regulatory levels for PFAS. EPA Health Advisory Level (HAL) of a 70 part per trillion (“ppt”) limit for PFOA and PFOS is not universally accepted as safe. The Agency for Toxic Substances and Disease Registry has already regulated ppt limits that are closer to what New Jersey uses – 13 ppt – and much lower than the HAL. In fact, 12 states have already developed MCLs lower than HAL. Yet, the Department of Defense has allegedly used EPA’s HAL and set a safe level of 380 ppt. Connecticut’s decision to set a limit of a 70 ppt for the sum of five different PFAS – PFHpA, PFHxS, PFNA, PFOS, and PFOA -, adds to the complexity of the issue.
Recent presentations have shown that some PFAS – PFOA, PFOS, and perfluorononanoic acid (PFNA) – have similar structures and critical effects and, therefore, can be grouped to set toxicity factors. Yet, they have also shown that some PFAS are dissimilar to PFOA and PFOS.
Third, the process of developing a drinking water standard typically takes a few years to complete. Currently, assessing the toxicity of a class of chemicals of the scale of PFAS is a challenge. There is no widely accepted method and it will take time to develop one.
Regulators must, therefore, prioritize official guidance and the development of best practices for consistency among PFAS standard-setting nationwide. This will be welcomed and useful before they become hyper-focused on results.
Water is an essential ingredient for life and when we take a glass of water from the tap, we should not have to worry that what we are drinking might cause us harm. Water cleanliness should be sacred, our nation’s health depends on it and, as such, officials should regulate PFAS with all due diligence.
Hilda Oltean is with the Environmental Litigation Group P.C. is a national community toxic exposure law firm with offices in Birmingham, AL, and Washington D.C.
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