PFAS Cleanup in Limbo Without a Law
As the number of communities in the U.S. discovering high levels of per- and polyfluoroalkyl substances in water supplies continues to grow, industry and local officials are waiting on legislative and regulatory leadership to set limits and standards for this pollutant class. Per- and polyfluoroalkyl substances are a group of man-made chemicals that includes PFOA and PFOS.
“The current lack of guidance on safe threshold levels, both federally and in many states, creates a challenging environment for utilities. They are left on their own to determine what are safe levels while facing public pressure to remove it all without raising rates—an impossible task,” says Dustin Mobley, a process engineer with Black & Veatch, which is helping water utilities address PFAS chemicals in their systems.
Typically, granular activated carbon, ion exchange, nano filtration and reverse osmosis have been used to treat PFAS, but the question is what level should utilities treat to in the absence of a federal standard, says Nathan Gardner-Andrews, chief advocacy officer at the National Association of Clean Water Agencies. “There has been no peer-reviewed, scientifically accepted studies looking at PFAS in a way that shows what the risk threshold is, and what the appropriate testing method should be,” he says.
PFAS are used in the manufacturing of firefighting foam and many household products, including cookware and clothing. Scientific studies of animals and humans have shown that the chemicals can be toxic and can cause illnesses, such thyroid disease, as well as pancreatic and testicular cancer. High levels of PFAS have been found in both wastewater and biosolids, as well as in drinking-water systems.
As of March 2019, at least 610 locations in 43 states were known to be contaminated with PFAS chemicals, including drinking-water systems serving 19 million people, the Social Science Environmental Health Institute in Boston said. The number of known contaminated sites was 172 in July 2018.
The U.S. Environmental Protection Agency has developed an action plan for the chemical class, but environmental groups and public health advocates say the plan does little to address the problem, as it only provides guidance rather than an enforceable national standard.
On the other side, some drinking-water and wastewater industry groups urge caution. They contend some solutions for reducing PFAS contamination, such as labeling the entire class of PFAS chemicals as “hazardous” and developing maximum contaminant limits for PFAS in drinking and wastewater, could be premature. They worry their members could be liable for cleanup of contamination they did not cause, and are urging lawmakers and regulators to follow the procedures laid out in the nation’s bedrock drinking-water and wastewater laws.
Tracy Mehan, former assistant administrator at the U.S. Environmental Protection Agency’s Office of Water from 2001 to 2003, and now executive director of government affairs at the American Water Works Association, says although “a lot of people are [studying PFAS], honestly, the politics are way out ahead of the science … We are not for or against a new regulation. We just want to see it done right—the process embedded in the Safe Drinking Water Act, which we view as basically science-based, data-driven, and risk-focused.”
Defense Authorization Bill
Lawmakers’ current vehicle to address PFAS contamination is the National Defense Authorization Act (NDAA) of 2020. PFAS has been found in high concentrations near numerous military sites where the chemicals are used in firefighting foam for training exercises.
Both House and Senate versions of the NDAA include language to address PFAS. The House bill would, among other things, phase out the use of PFAS in firefighting foam by 2025, require more water quality monitoring under the Clean Water Act and fund a five-year U.S. Geological Survey study on PFAS contamination.
The Senate bill would direct the U.S. Environmental Protection Agency to develop a standard under the Safe Drinking Water Act. Both versions would provide $121 million for remediation near Dept. of Defense sites. However, a final compromise bill has yet come up for a vote and the White House has threatened a veto over some of the PFAS provisions in the bills.
At a Sept. 10 hearing, Democrats and some Republicans on the House Subcommittee on Environment asked witnesses what lawmakers could do to begin to address the problem by speeding remediation of contaminated sites and revising laws including the Clean Water Act and the Comprehensive Environmental, Response, Compensation and Liability Act.
The witnesses, who included former Minnesota Attorney General Lori Swanson, called for swift action to ensure that national laws are strengthened to protect against PFAS contamination and that the manufacturers of PFAS are held accountable. Swanson successfully won a $739-million settlement against 3M in 2018 that established a working group to allocate funds for the cleanup of drinking-water systems contaminated with PFAS.
Representatives also chided officials from the companies that manufactured the products—3M and Dupont—for maintaining the chemicals were safe, when animal and human studies done by their own researchers showed that PFAS chemicals used in their products were harmful.
Republican Bob Gibbs of Ohio asked Bob Bilott, an attorney who has worked on lawsuits against the manufacturers of PFAS for two decades, whether there has been enough research to be able to say that the entire class of PFAS chemicals—which includes some 5,000 compounds—is dangerous. Bilott said there was enough information on PFOA specifically to act now.
The corporations testifying at the hearing were Dupont; Chemours—a Dupont spinoff established in 2015 to house the company’s Teflon lines and other products manufactured with PFAS; and 3M. In her testimony, Denise Rutherford, senior vice president of corporate affairs at 3M, noted 3M voluntarily phased out PFOA and PFOS use in 2000 and is working with the state of Minnesota to support “ongoing remediation” of sites where 3M played a role.
Seventy sites contaminated with PFAS have been identified in Michigan, and Rep. Debbie Dingell (D-Mich.), says her state is just the tip of the iceberg. “As more states begin to test, we are going to see more. This affects Republican and Democratic districts; it’s not a partisan issue,” she said, adding that Vermont and New Hampshire also have filed lawsuits over the contamination. It is just one tactic states are using to address PFAS contamination. Others include setting limits for PFAS based on their own studies, and investing in the modernization of drinking-water and wastewater infrastructure to prevent further PFAS contamination.
“We’re playing catch-up to a crisis that has been unfolding for decades, and state and federal lawmakers need to act with urgency,” says Oday Salim, an attorney with the National Wildlife Federation and director of the University of Michigan’s Environmental Law and Sustainability Clinic.
As for the NDAA, Salim is hopeful some form of PFAS language will remain in the final bill. “I don’t know that we’re going to get another moment like this—where congressional focus is on PFAS in a bipartisan manner.” He adds, however, “it’s not enough. The federal government could have done more. States have to step up.”