Regulating PFAS at the Federal Level: Deriving Policy Options for the United States From Existing EU Regulations (Part 1)

Tuesday, July 21, 2020

Whether or not you follow chemical regulations, you’ve probably heard of PFAS, per- and polyfluoroalkyl substances, a class of over 4,700 synthetic compounds. While many have discussed the risks of PFAS for human health, regulation is lacking in the United States to limit its use. So, what are the risks posed by PFAS and what policy measures might prove effective in mitigating their potential harm? This two-part blog will explore the answers to these questions. Part One will discuss the wide-ranging health threats posed by PFAS and the European Union’s (EU’s) legislative framework for regulating their import, production, and spread. Part Two will suggest potential policy solutions for the United States moving forward.

Within the class of PFAS, there are two subcategories: perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). PFAS compounds are waterproof, greaseproof, non-stick, stain-resistant, and heat resistant, making them attractive for use in a variety of consumer products. Raingear such as umbrellas, rain boots, and raincoats; food packaging such as takeout bags and pizza boxes; cookware, specifically Teflon and other non-stick pans; carpeting and stain-resistant sprays; and aqueous firefighting foam are all examples of products made with PFAS.

While PFAS certainly serve a variety of functions, exposure can be dangerous and have wide-reaching impacts. For example, if manufacturing plants using PFAS in their production processes are careless in their disposal of wastewater, PFAS can be dispersed throughout the watershed, contaminating the water supply of nearby residents and downstream users. In fact, as of January 2020, PFAS contamination of drinking or groundwater was detected at 1,400 sites in 49 states across the United States, affecting the water supplies of 110 million Americans. Alarmingly, the Centers for Disease Control and Prevention’s (CDC’s) estimates that there are detectable levels of PFAS in the bloodstream of 97% of Americans. And because PFAS are highly mobile through water, soil, and the air, they also threaten the welfare of wildlife and ecosystems.

PFAS exposure is correlated with a variety of adverse health outcomes, which are especially detrimental in vulnerable populations. In children, PFAS can impede growth, learning, and behavioral functions. Women exposed to PFAS have experienced lower fertility rates and other hormonal disruptions, while pregnant women exposed to PFAS are more likely to give birth to infants with low birth weights and birth defects. Among the general population, studies have correlated PFAS exposure with high cholesterol, ulcerative colitis, abnormal thyroid function, cancers (specifically thyroid, testicular, and kidney), asthma, and immunotoxic effects.

PFAS are often referred to as “forever chemicals” because they do not decompose naturally and there is no known method for safely destroying them. Additionally, PFAS bio-accumulate in both humans and animals. Because of this excessively persistent quality, PFAS take eight to nine years to clear the body following initial exposure.

plastic bottlesDespite evidence that PFAS exposure poses environmental and health risks, there is no comprehensive federal regulation of these chemicals in the United States. EPA has established a non-enforceable lifetime Health Advisory Level of 70 parts per trillion for the subcategories PFOS and PFOA in drinking water combined. In addition to not being legally binding and neglecting to cover the entire class of PFAS chemicals, this Health Advisory Level is also 10 times greater than the CDC’s recommended level of safe exposure. In an attempt to address the legislative vacuum surrounding PFAS, EPA formulated its PFAS Action Plan in February 2019. The Plan outlines steps that EPA will undertake to increase funding for PFAS research, update drinking water standards, examine data on chemical discharge by industries, and assist states in cleanup efforts of contamination sites. EPA updated its program in February 2020, but neither the PFAS Action Plan nor the program update commits EPA to a course of action that would strengthen the regulation of PFAS, revealing a disturbing lack of urgency to protect the health of Americans.

Meanwhile, EU regulation on PFAS demonstrates a drastically different approach. In December 2019, the EU adopted its Elements for an EU-Strategy for PFASs, which eliminates all non-essential uses of PFAS by the year 2030 and urges the substitution of PFAS with safer alternatives as they become available. The strategy emphasizes the necessity of addressing PFAS as an entire group of chemicals, contending that regulating each individual compound within PFAS would be cost-ineffective and threaten human health and the environment. The strategy therefore characterizes PFAS as a “legacy problem” from an environmental, economic, and health perspective. Individual EU countries, such as the Denmark, Germany, and the Netherlands have further announced plans for even more stringent and expeditious bans on the use of PFAS.

In addition, unlike the United States, the EU has ratified the Stockholm Convention on Persistent Organic Pollutants, a United Nations treaty devised to protect human health and the environment. Under this agreement, both PFOA and PFOS are listed under Annexes A and B, calling for either the complete elimination or restriction of production and importation/exportation of these chemicals. Similar to the EU-strategy for PFASs, the Stockholm Convention relies on the Precautionary Approach outlined in Principle 15 of the Rio Declaration on Environment and Development. Principle 15 declares that in situations where “there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” This approach prioritizes the health and welfare of the environment above the ability to justify the regulation of every PFAS chemical with scientific data, which is often relied upon to protect industry interests.

Due to the harmful effects and startling prevalence of PFAS in both the American population and the environment, the United States should enact prompt and comprehensive reforms to regulate PFAS at the federal level. Fortunately, there are three promising policy options: (1) regulate the production of PFAS; (2) limit the ingestion of PFAS through drinking water; and (3) provide funding for federal cleanup of PFAS-contaminated sites. These will be discussed further in Part Two.