New Lawsuit Would Overturn EPA Advisories Seen As Precursor To More State & Federal Regulation

In June the Environmental Protection Agency (EPA) released four new drinking water health advisories related to PFAS contamination. The soundness of these advisories has since been called into question and in late July a lawsuit was filed seeking to overturn two of them.

PFAS is the acronym referring to Per- and Polyfluoroalkyl substances, which the EPA describes as “a group of manufactured chemicals that have been used in industry and consumer products since the 1940s because of their useful properties.” The EPA notes there “are thousands of different PFAS, some of which have been more widely used and studied than others.”

“These advisories indicate the level of drinking water contamination below which adverse health effects are not expected to occur,” the EPA said in a statement. “Health advisories provide technical information that federal, state, and local officials can use to inform the development of monitoring plans, investments in treatment solutions, and future policies to protect the public from PFAS exposure.”

As with some state-level PFAS regulations, the EPA’s new PFAS advisories have been challenged in court. The American Chemistry Council filed a lawsuit on July 29 challenging the advisories, noting in a statement that “EPA’s revised Lifetime Health Advisories (LHAs) for PFOA and PFOS reflect a failure of the Agency to follow its accepted practice for ensuring the scientific integrity of its process.”

The EPA says the advisories were issued “in light of newly available science and in accordance with EPA’s responsibility to protect public health.” On the agency’s own website, however, the EPA makes clear there is not a full understanding of how to detect and measure PFAS in water, the extent of human PFAS exposure, the degree to which PFAS adversely affects people, or how PFAS can be eliminated from drinking water supplies.

“For some PFAS that are commonly detected in drinking water…there’s virtually no animal or human data that can be used for risk developing toxicity factors,” said Dr. Gloria Post with the New Jersey Department of Environmental Protection. There isn’t even agreement over what chemicals are in the PFAS category.

“The National Institute of Environmental Health Sciences acknowledges that over 4,700 PFAS compounds exist while the EPA’s CompToxChemicals Dashboard lists 10,776,” said Dr. Jeff Warren, executive director of the North Carolina Collaboratory at UNC Chapel Hill, a think tank established by the North Carolina General Assembly to bridge academic research and policy expertise with state policymakers. North Carolina lawmakers have provided the Collaboratory approximately $20 million in funding to study PFAS.

Critics contend the new EPA water advisories are a misguided reaction to the presence of PFAS and have been implemented through a faulty process. Many are concerned the new advisories will be used as justification for more regulation at the federal and state levels, new regulations that will saddle employers and consumers with additional costs.

Meanwhile the Biden White House and members of Congress are seeking to reduce the use of PFAS in U.S. manufacturing. Critics contend this and other PFAS mitigation efforts will wreak havoc on domestic supply chains, to the detriment of the U.S. economy and national security. Just as President Biden’s solar tariffs and import restrictions, until lifted, had been in conflict with the White House’s renewable energy goals, the effort to crack down on PFAS in manufacturing is another instance in which the Biden administration’s policies contradict stated objectives.

At an event in Ohio on May 6, the President urged semiconductor manufacturers to bring operations to the U.S. “So, let’s make them in America again,” Biden told the Ohio crowd. “Let’s build the future here in America.”

The problem for the Biden White House is that high-volume production of advanced semiconductors requires PFAS, whose use the White House and members of Congress want to mitigate. That is why critics contend the imposition of new PFAS regulations based on the controversial EPA advisories released in June will unnecessarily harm many key sectors of the economy, particularly the defense and semi-conductor industries.

While the White House talks up the need for more regulation and Congress considers the the PFAS Action Act, federal legislation to have the EPA designate PFOA and PFOS as hazardous substances, some states have already imposed PFAS regulations. Lawmakers in California have gone so far as to enact legislation prohibiting certain PFAS chemicals in food packaging and to ban the use of PFAS chemicals in infant carriers, nursing pillows, changing pads, booster seats, and crib mattresses.

As with the new EPA PFAS advisories, the science and process ungirding state level PFAS regulations, such as those recently imposed in Wisconsin, has been called into question. The PFAS standards implemented by the Wisconsin Department of Natural Resources in 2021, for example, are now being challenged in court because they did not undergo the formal rule making process. The lawsuit seeking to overturn those PFAS regulations was filed by Wisconsin Manufacturers and Commerce (WMC).

“WMC has consistently explained that if DNR wants to regulate PFAS substances, they are required to follow the law by promulgating those regulations as rules. This has not yet happened, which is why WMC has challenged DNR in court,” said Scott Manley, executive vice president of government relations for WMC.

The new EPA advisories are expected be used by proponents of additional state and federal regulation of PFAS. In fact, in announcing the new advisories, the EPA stated “that it is inviting states and territories to apply for $1 billion…to address PFAS and other emerging contaminants in drinking water.”

However, it is unlikely any such regulatory action will be taken prior to November. While there are many policy arguments being made for and against new PFAS regulations, the fact is hastily written regulations that drive up costs for employers, exacerbate ongoing supply chain complications, and jeopardize national security don’t make for good election year politics.