Last January, the Union of Concerned Scientists was party to a legal action against the Environmental Protection Agency’s (EPA) rules regarding per- and polyfluoroalkyl substances (PFAS) better known as “forever chemicals” because, well, they seem to last forever once released into the environment. Essentially, we were demanding that the EPA close various loopholes in their requirements for companies and the military to report on releases of forever chemicals into the environment. This week, the EPA announced that they intend to close one of the most important loopholes that industries use to hide their reporting on PFAS pollution. This follows through on a promise the EPA made in their PFAS Roadmap in October 2021 to remove exemptions and exclusions for toxic chemical reporting.
Great! That’s a win! But, unfortunately, it addresses only a small part of the puzzle of monitoring and reducing the release of these dangerous toxic chemicals into the environment.
A scary pollution problem
Forever chemicals have been used in manufacturing for many years, as a component of fire-fighting foam particularly on military bases, and as a coating on products. When we at the Union of Concerned Scientists analyzed PFAS contamination in groundwater and drinking water, we found that levels were especially concentrated at military bases and in marginalized communities, often going tens of thousands of times above the levels that the Agency for Toxic Substances and Disease Registry consider a health risk. And there are thousands of chemicals in the PFAS family. Companies keep innovating and changing formulations of the chemicals to increase their use and, frankly, to avoid national and international regulation as shown in their recent lawsuit against the EPA regulating the chemicals as a class. And these substances—the whole class—are toxic: they are known to cause cancer and other pollution-related disease. Not only has the industry, directly or through their aggressive trade association, the American Chemistry Council, sought to avoid regulation, they have also hidden information on the health impacts of forever chemicals for decades. It is a classic case of an industry using the Disinformation Playbook.
This PFAS class of chemicals simply don’t break down the way many other contaminants do. As a result, even small releases of these chemicals accumulate and accumulate and build and build such that ultimately, PFAS chemicals are shown to be everywhere and in the blood of virtually every person on Earth. In fact, when industry was trying to study PFAS in people, they could not find a baseline (i.e. they could find no group of humans that did not have these chemicals in their blood). They had to use blood samples from Korean War vets, which predated the wide distribution of PFAS chemicals. Just this week it was reported that new studies show that PFAS substances are in rainwater everywhere on earth at levels above those considered safe. That’s astonishing and terrifying. Because we know these chemicals are far from benign.
Lack of data doesn’t mean lack of pollution
As part of its effort to conceal the scale of pollution, the chemical industry and their clients have tried to reduce the requirement that they report on releases or dumping of forever chemicals. Until recently, the EPA did not include reporting of PFAS substances in the Toxics Release Inventory (TRI) so companies were not required to report releases, essentially concealing the information from the public. The effort to conceal information was especially intense during the Trump Administration when concern over public relations resulted in suppression of a scientific report about this class of chemicals.
The Biden Administration had, and still has, a real opportunity to finally take action on forever chemicals. And, amazingly enough, there is bipartisan support to do so. The National Defense Authorization Act of 2020, passed in both houses of Congress and signed into law, included several PFAS provisions. Specifically, it calls for increased reporting of PFAS pollution including through the TRI. But the EPA rules contained numerous loopholes for industry and the military that allowed them to avoid reporting. Our lawsuit sought to close those loopholes.
In particular, there was a loophole for so-called “de minimus” content of PFAS, such that if the percent of the total volume of a release was low, no reporting was required. Of course, a small percentage in a huge volume can still be a lot of a chemical, especially one that never breaks down! But that de minimus exemption has been invoked again and again by industry. Now, thanks to the lawsuit, the loophole for de minimus content should be closed.
As Laurene Allen, a National PFAS Contamination Coalition leadership team spokesperson and one of our co-litigants in the lawsuit put it: “Thanks to EPA’s loopholes, communities, scientists and lawmakers don’t know which PFAS are being used, in what amounts, or to what extent companies are dumping PFAS in our air or water. Allen is also a resident of Merrimack, New Hampshire, where known PFAS-polluter Saint Gobain Performance Plastics operates a major facility. “PFAS remain largely unregulated, so communities depend on accurate reporting to figure out how to advocate for themselves,” she said. “EPA must close these loopholes immediately and force companies to accurately disclose their PFAS pollution.”
One small step…
There is still a long way to go to get effective reporting and regulation of forever chemicals. A team from EarthJustice, the lead attorneys for our lawsuit, has evaluated actions taken on a roadmap the EPA created to deal with the messy, dangerous, and pervasive threat to health that these forever chemicals present. And on a lot of the steps, the EPA is failing.
So, this recent legal victory was a win—a small, but impactful, win. But the effort to hold government to account must continue, through public pressure, litigation, and in Congress. Forever chemicals aren’t going anywhere. Those of us who care can’t give up the fight.
Originally posted by Union of Concerned Scientists on 2022-08-04 10:06:32