By Stephan Maranian, JHBL Staff Member
On October 18, 2021, the Environmental Protection Agency (“EPA”) announced a long-awaited plan to confront pollution caused by a group of toxic “forever chemicals.”[1] Per- and polyfluoralkyl substances, collectively known as “PFAS,” are a group of industrial chemicals that many, including the environmental community, have raised great concerns over for years.[2] PFAS can be found in countless products, from nonstick pans, to waterproof clothing, to dental floss. The concern with PFAS is that the chemicals do not naturally break down. Rather, they remain, and build up, in the environment and in the human body. According to the Agency for Toxic Substances and Disease Registry, most of the United States population has been exposed to PFAS and has it in their blood.[3]
PFAS contaminate water supplies through industrial discharge, a problem local communities—including Merrimack, NH—continue to struggle with.[4] Firefighting foam is another major source of PFAS, which has resulted in the contamination of hundreds of military sites and surrounding communities.[5] The likelihood of health issues depends on the concentration, frequency, and duration of PFAS exposure.[6] Studies suggest possible health issues include fertility issues, increased cholesterol, changes to immune system, increased risk of cancer (particularly testicular and kidney cancer), changes in fetal and child development, liver damage, increased risk of thyroid disease, and increased risk of asthma.[7]
While the regulation of PFAS is new, these chemicals have been used for decades. Evidence suggests chemical manufacturers like DuPont and 3M knew of the negative health and environmental impacts of PFAS since the 1960’s.[8] The 2019 movie, Dark Waters, is about an attorney, played by Mark Ruffalo, who uncovers DuPont’s intentional PFAS contamination of a watershed and the deadly effects it caused the local West Virginian community.[9]
Initially, PFAS regulation occurred on a state-by-state approach. Vermont set one of the country’s most strict health advisories and groundwater cleanup standards, by testing the quality of drinking and groundwater, and forming an interagency committee to help identify how to prevent a drinking water crisis.[10] Massachusetts’s 2020 PFAS regulation, like other states who took action, only regulated six PFAS substances.[11] Yet there are thousands of individual PFAS chemicals; a consolidated list includes over six thousand PFAS substances.[12] Given the scale of the issue, the news of EPA’s Roadmap is welcomed as a much needed first step for a national plan to regulate PFAS.
EPA’s Roadmap focuses on three key strategies: (1) increasing research investment; (2) leveraging authorities to take action to restrict PFAS from being released into the environment; and (3) accelerating cleanup of PFAS contamination.[13] The EPA will now require manufacturers of PFAS to provide the agency with information on categories of PFAS chemicals, as well as the chemicals’ toxicity data.[14] Additionally, PFAS will be designated as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), also known as Superfund, which is a legal mechanism for holding polluters financially accountable.[15]
While EPA’s Roadmap is welcomed as an important first step in the regulation of PFAS, many believe the government must go further to confront this pressing issue.[16] As PFAS compounds are continually created, used, and released into the environment, a more comprehensive approach, rather than the previously existing state-by-state and chemical-by-chemical strategy, is required to protect the nation’s health and environment.
Stephan Maranian is a second-year law student at Suffolk University Law School, interested in environmental and energy law. He holds two degrees in Environmental Science, a BA from Saint Anselm College and an MS from the University of Massachusetts Boston. Stephan interned with Conservation Law Foundation, and is currently working as a law clerk at a personal injury firm, in addition to being a staff member on the Journal of Health and Biomedical Law.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Sources
[1] Environmental Protection Agency, EPA Administrator Regan Announces Comprehensive National Strategy to Confront PFAS Pollution, Oct. 18, 2021.
[2] Abraham Lustgarten, Lisa Song, Talia Buford, Suppressed Study: The EPA Underestimated Dangers of Widespread Chemicals, ProPublica, June 20, 2018.
[3] Agency for Toxic Substances and Disease Registry, PFAS in the U.S. Population, June 24, 2020.
[4] Kimberly Houghton, Merrimack won’t settle for 90% reduction in PFOA contamination at Saint-Gobain, New Hampshire Union Leader Dec. 11, 2019.
[5] Sharon Lerner, The U.S. Military Spending Millions to replace Toxic Firefighting Foam with Toxic Firefighting Foam, Feb. 10, 2018.
[6] U.S. Department of Veterans Affairs, PFAS – Perfluoroalkyl and polyfluoroalkyl substances, April 17, 2020.
[7] Id.
[8] Sharon Lerner, 3M KNEW ABOUT THE DANGERS OF PFOA AND PFOS DECADES AGO, INTERNAL DOCUMENTS SHOW, The Intercept, July 31, 2018.
[9] Based on a true story involving Attorney Robert A. Bilott.
[10] Conservation Law Foundation, Protecting New Englanders from Toxic Chemicals in Drinking Water, Oct. 30, 2018.
[11] Conservation Law Foundation, Massachusetts Issues New PFAS Regulation, Sept. 24, 2020.
[12] EPA, PFAS Master List of PFAS Substances (Version 2), Sept. 16, 2020.
[13] See Environmental Protection Agency, supra note 1.
[14] See id.
[15] See id.
[16] See Conservation Law Foundation, Toxic forever chemicals found throughout New England, Oct. 18, 2021.