By Avery Reavis, JHBL Staff Member

Introduction:

Per- and Polyfluoroalkyl Substances (“PFAS”), also known as “forever chemicals,” are man-made chemicals that have been linked to various health risks, including cancer.[1]  Recent research has shown that PFAS are present in at least 45% of samples taken of United States drinking water.[2]  In March of 2023, the Environmental Protection Agency (“EPA”) proposed the National Primary Drinking Water Regulation (“NPDWR”) for six PFAS.[3]  The proposed regulation will establish legally enforceable maximum contaminant levels for these PFAS and is expected to be finalized early this year.[4]

The proposed regulation will have a massive impact on the pervasiveness of PFAS and their effect on living organisms, including humans.[5]  The importance of this regulation is further highlighted by the fact that research on the negative effects of PFAS is still ongoing.[6]

Background:

PFAS was produced for various industrial purposes, such as nonstick cookware, firefighting foams, and to make things resistant to grease, water, and oil.[7]  PFAS are known as “forever chemicals” because they either do not break down or take a very long time to do so.[8]  Since they do not break down, they eventually make their way into soil, water, and air.[9]  Due to their persistent nature and widespread use, PFAS are found in living organisms around the world, including humans and the food we eat.[10]  PFAS can also bioaccumulate in humans and animals, increasing the overall concentration of PFAS in an organism over time.[11]

While research on PFAS and their effects on human health is ongoing, the known effects are widespread.[12]  Epidemiological evidence suggests  that increased exposure to PFAS leads to increases in cholesterol levels, changes in lived enzymes, decreases in birth weight, lower antibody response to some vaccines, pregnancy-induced hypertensions and preeclampsia, and kidney and testicular cancer.[13]  The risks of PFAS are affected by various exposure factors, such as dosage, frequency of exposure, and duration.[14]  Individual factors also affect risk, such as individual sensitivity and disease burden, along with access to safe water and access to quality healthcare.[15]  Currently, the majority of research is conducted on lab animals.[16]  While results on lab animals cannot always be indicative of the exact risks PFAS pose on humans due to physiological differences, studies on lab animals have shown PFAS can also cause delayed development, newborn deaths, damage to the liver, and damage to the immune system in humans.[17]

Analysis:

Currently, and until the EPA’s proposal is finalized, there are no enforceable national drinking-water standards for PFAS in the United States.[18]  The Environmental Protection Agency is expected to finalize the National Primary Drinking Water Regulation (“NPDWR”) sometime this year.[19]  The NPDWR will regulate six PFAS, including: (1) perfluorooctanoic acid (PFOA), (2) perfluorooctane sulfonic acid (PFOS), (3) perfluorononanoic acid (PFNA), (4) hexafluoropropylene oxide dimer acid (HFPO-DA), (5) perfluorohexane sulfonic acid (PFHxS), and (6) perfluorobutane sulfonic acid (PFBS).[20]  The proposed NPDWR will establish legally enforceable levels, known as Maximum Contaminant Levels (MCLs), along with non-enforceable Maximum Containment Level Goals (MCLGs) for the six PFAS.[21]  The proposed MCLs for PFOAs and PFOS are 4 parts per trillion and Zero for the proposed MCLG.[22]  The MCLGs for PFOAs and PFOS are 0 parts per trillion.[23]  MCLGs, while unenforceable, establish goal contamination levels to protect vulnerable populations, such as children.[24]  Once the NPDWR is finalized, public water systems will have a few years to get into compliance with the new MCLs.[25]

The EPA has three overarching goals regarding PFAS: Restrict, Remediate, and Research.[26]  Through these goals, the EPA hopes to prevent PFAS from entering the environment at dangerous levels, broaden and accelerate cleanup, and invest in research and development in order to better understand the risks associated with PFAS.[27]  Although the United States has been manufacturing PFAS in some form or another since the 1930s, there is still much to learn about the potential risks associated with PFAS and how widespread they actually are.  The proposed regulation contributes to the EPA’s goal to restrict the amount of PFAS entering the ecosystem at hazardous levels and remediate PFAS in drinking water.  The NPDWR will be a major step for both the Restrict and Remediate goals for drinking water, as there is no current restriction on PFAS in drinking water.

Even though our knowledge of PFAS is still in its infancy, current research has been sufficient to show the dangers of PFAS and to prompt a response from the federal government through the EPA and various state actions.  Not only is the EPA set to establish the first legally enforceable regulations on PFAS in drinking water, the EPA plans to list certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and issue guidance on how to destroy and dispose of PFAS.[28]  With the help President Biden’s Bipartisan Infrastructure Law, the EPA is able to invest in the removal of PFAS from various sources, including drinking water.[29]  The EPA is also investing in furthering the scientific foundation regarding PFAS by investing in research to better understand the health risks of PFAS.[30]  PFAS remain pervasive in everyday life, but the future is a little brighter with the EPA and various state governments acknowledging the dangers of PFAS and taking action.

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. 

Avery Reavis is a second-year law student interested in environmental and commercial law.


[1] See What are PFAS?, Agency for Toxic Substances & Disease Registry https://www.atsdr.cdc.gov/pfas/health-effects/overview.html [https://perma.cc/P9TZ-R487].

[2] See Smalling et al., Per- and polyfluoroalkyl substances (PFAS) in United States tap water: comparison of underserved private-well and public-supply exposures and associated health implications, 178 Environ. Int. 108033 (2023).

[3] See Per- and Polyfluoroalkyl Substances (PFAS), EPA (Feb. 12, 2024). https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas [https://perma.cc/N7EX-M4WJ].

[4] See id.

[5] See id.

[6] See id.

[7] See What are PFAS?, supra note 1.

[8] See id.

[9] See id.

[10] See id.

[11] See What are PFAS?, supra note 1.

[12] See What are the health effects of PFAS?, Agency for Toxic Substances & Disease Registry https://www.atsdr.cdc.gov/pfas/health-effects/index.html [https://perma.cc/RS55-PDFL].

[13] See id.

[14] See id.

[15] See id.

[16] See What are the health effects of PFAS?, supra note 12.

[17] See id.

[18] See Smalling et al., supra note 2.

[19] See Per- and Polyfluoroalkyl Substances (PFAS), supra note 3.

[20] See id.

[21] See id.

[22] See id.

[23] See Smalling et al., supra note 2.

[24] See id.

[25] See PFAS Standards for Drinking Water, Minn. Dep’t of Health https://www.health.state.mn.us/communities/environment/water/pfasvalues.html [https://perma.cc/7XAJ-GH95].

[26] See EPA’s PFAS Strategic Roadmap: Second Annual Progress Report, 3, EPA, https://www.epa.gov/system/files/documents/2023-12/epas-pfas-strategic-roadmap-dec-2023508v2.pdf [https://perma.cc/99TG-WJGK].

[27] See id.

[28] See id. at 4

[29] See id. at 3

[30] See EPA, supra note 26.