Even small amounts of exposures to forever chemicals have been linked to certain kinds of cancers, reproductive and immune system harms, and other diseases. They are the subject of important federal guidelines issued June 15, 2022.

Today, nearly all Americans have some level of these forever chemicals in their blood and 200 million people may be drinking forever chemical tainted water. PFAS largely remain unregulated but there is movement in that direction.

In 2016, the US EPA had implemented guidelines setting a limit of 70 parts per trillion (ppt) for either PFOS, PFOA, or a combination of those compounds, in drinking water. Both chemicals have been phased out by manufacturers, but they are still being used in some instances, most commonly in fire resistant foams, pesticides, and household cleaning products.

In the new guidelines, it is observed, the EPA wants to “regulate all PFAS with enforceable standards as a single class of chemicals”, according to Erik. D. Olson, Senior Strategic Director for Health at the Natural Resources Defense Council (NRDC).

EPA’s new guidelines are established in published Health Advisories. They decrease the limit to 0.02 ppt for PFOS and 0.004 ppt for PFOA, with the goal of being as close as possible to zero. These Health Advisories are based on recent scientific findings which show serious health and environmental issues associated with human exposure to forever chemicals.

These new Advisories will provide federal, state and local agencies, and owners, managers, and purveyors of water supplies, with technical information, water quality monitoring, and strategies to reduce exposure.

Despite their non-binding authority, the Advisories have been said to have “sweeping implications for policies at the state and federal levels.” The EPA will likely use the new advisories, for example, for future rulemaking and legislative proposals for Congress to set a national drinking water standard for PFAS while also developing discharge limits for PFAS used by various industries.

Such a bill passed the House of Representatives in 2021 but it was stalled in the Senate after facing a veto threat from then President Trump. It would provide a cause of action under the Toxic Substances Control Act (TSCA) “for individuals or classes of individuals who were significantly exposed to [PFAS].” President Biden has indicated support for the bill despite the Senate failing to introduce a companion bill.

Meanwhile, several states are not waiting for new legal initiatives from the federal government. They have already adopted their own PFAS standards, some more strict than others, and for a variety of purposes. For example, some states had followed the federal lead with 70 ppt, others set limits below 70 ppt, most remain above the new EPA guidelines, and a few expect to adopt the new federal limits as their own fairly soon.

Massachusetts in recent years was known to have some of the strictest PFAS limits in the nation on the state level. Specifically, in 2020, MassDEP published a public drinking water standard for Massachusetts limiting PFAS to 20 ppt. MassDEP acknowledges that while the new Advisories are non-enforceable and non-regulatory, they are useful to provide technical information to states agencies and other public health officials.

MassDEP may or may not lower its PFAS limits to the new EPA advisory levels, of course, but presently is “working to review the new EPA Interim Health Advisories and will determine next steps based upon that review.” It would be fair to expect MassDEP to take the federal guidance seriously, and move in that direction sooner rather than later.

Government agencies, as has been the case with every new environmental concern of some permanence and public health risk, such as DDT, asbestos, and PCBs, typically acknowledge some worry about the reliability of initial test results, relevance to human health impacts, data on impacts ecosystems, and of course cost of monitoring, market changes, chemical substitution, and any needed cleanup of manufacturing sites and impacted water supplies.

As an illustration of this typical regulatory conundrum, firefighting foam continues to contain PFAS chemicals, and a replacement to combat fire has been estimated to “run into the billions of dollars.” As a starter, the EPA will make $1 billion available in grants to aid communities through covering the cost of technical assistance, water quality testing, contractor training, and treatment system installation.

It remains to be seen what difference the new EPA Advisories will make in application. It is clear that municipalities could rely on the EPA’s new guidelines to study, plan, design, install and operate filtration systems to achieve a lower exposure for the drinking population. Some may rely on the advisories to take enforcement actions against a discovered source of that chemical contamination, using Superfund, TSCA, or similar state laws or common law theories.

Previously on PFAS, EPA took steps in what it calls the “PFAS Strategic Roadmap” which was implemented in October 2021. The purpose of the Strategic Roadmap is to invest in research, development, and innovation to increase an understanding of PFAS exposures to humans and the environment, while also restricting PFAS from entering the air and water and remediating PFAS contamination through accelerated cleanup efforts.

Other steps have included a published Toxic Substances Control Act PFAS order under the National PFAS Testing Strategy, “draft aquatic life water quality criteria for PFOA and PFOS”, and a memorandum to address PFAS in Clean Water Act permitting. These are only the beginning.

The PFAS Strategic Roadmap and other moves have been informative and influential. They steered the federal agencies this far as PFAS are starting to be folded into national legal, scientific, funding and regulatory programs affecting drinking water, surface water, groundwater, and other repositories of this ubiquitous set of chemicals.

We await what actions the states and municipalities, plus public and private water sources and distributors, may take to follow the federal lead or jump in front to tackle the challenges posed by these newly appreciated forever chemicals.

For more information: https://www.epa.gov/sdwa/drinking-water-health-advisories-has

Madison Gaffney is a rising 3L at Vermont Law School where she is pursuing her J.D. and Master’s in Environmental Law and Policy.