State & Federal Officials Move To Regulate & Even Ban PFAS Chemicals, But Many Wonder If That Makes Sense

For federal and state lawmakers who have an unending procession of meeting requests, committee hearings, markups, fundraisers, and other demands on their schedules, time is perhaps the most valuable finite resource. For these reasons, what legislators choose to focus on is just as important as their policy preferences and positions. 

Given the scarcity of time had by government officials, lawmakers’ recent focus, both at the state and federal levels, on a group of chemicals, has struck many as misplaced and unnecessarily costly while others feel quite the opposite. Per- and Polyfluoroalkyl substances, widely referred to by the acronym PFAS, are “a group of manufactured chemicals that have been used in industry and consumer products since the 1940s because of their useful properties,” explains the Environmental Protection Agency (EPA), which points out that there “are thousands of different PFAS, some of which have been more widely used and studied than others.”

The desire to regulate, and possibly prohibit, the use of PFAS chemicals is primarily based on concerns over water contamination. Yet the EPA does not list PFAS among the main threats to water quality. According to the CDC, “human health effects from exposure to low environmental levels of PFAS are uncertain.” Additionally, recent reports show that bodies of water contain only trace amounts of PFAS and have been declining. State and federal legislators are moving forward with new regulations and even total bans on certain PFAS chemicals despite the uncertainty surrounding potential health threats posed by PFAS chemicals, or even an agreement as to which chemical compounds fall under the PFAS umbrella. 

“The number of PFAS compounds in existence continues to grow,” said Dr. Jeff Warren, executive director of the NC Collaboratory at UNC Chapel Hill, a think tank established by the NC General Assembly in 2016 to bridge academic research and policy expertise with State policymakers in Raleigh, and the recipient of approximately $20 million in legislative funding to study PFAS. “For example, the NIEHS acknowledges that over 4,700 PFAS compounds exist while the EPA’s CompToxChemicals Dashboard lists 10,776. Targeted analysis of these compounds is a challenge because you need a chemical standard of each compound in which to measure against, which is why the Collaboratory’s statewide PFAS Testing Network also utilizes non-targeted analysis and total organic fluorine investigations in an attempt to create a more accurate census of the PFAS compounds found in North Carolina. 

Dr. Warren explains that even if we get to a point of broader PFAS regulation at the federal and or state levels, there remains the issue of human exposure to legacy compounds already in the environment. He notes that understanding the extent of PFAS in North Carolina and their potential toxicological risks, another effort funded by the Collaboratory, allows policymakers to also focus on risk mitigation. One example of promising work coming out of the laboratories of Drs. Frank Leibfarth and Orlando Coronell at UNC Chapel Hill, is the development of a new ionic fluorogel resin that, at least at the bench scale, appears to be more effective than any other technology on the market today in removing PFAS compounds. Sopromising, in fact, that Leibfarth ended up on Popular Science’s Brilliant 10 list last September for his work in this field. The North Carolina Legislature subsequently provided $10 million to scale up this resin technology and deploy it to three pilot locations across North Carolina.

“While we wait for policymakers to debate what PFAS regulations might look like, we have an immediate opportunity to work towards reducing PFAS exposure,” explains Warren. The debate over PFAS regulations that Dr. Warren alludes to is playing out right now in state capitals across the country, as well as in Washington, D.C. 

A new California law banning the use of some PFAS chemicals in food packaging will take effect January 1, 2023. That’s not the only legislation related to PFAS chemicals to have been approved by Governor Gavin Newsom and Golden State legislators in the past year. Governor Newsom and company also enacted a bill in October 2021 that bans the use of PFAS chemicals in products such as infant carriers, nursing pillows, changing pads, booster seats, and crib mattresses. In addition to that, California legislators also approved bills that prevent products containing PFAS chemicals from being labeled as compostable or recyclable. Other states, such as Minnesota and Maine, have already imposed regulations dealing with PFAS. Yet even in states where PFAS regulations have already been imposed, there are ongoing calls for more regulation and government intervention.  

“I do think that there’s a real conversation that needs to be had at the state level, at the legislative level, about what else is needed,” Nancy McBrady, who handles PFAS issues for the Maine Department of Agriculture, recently told Maine Public Radio. “The really robust support that has been provided to date both to DEP and the Department of Ag is not enough and it doesn’t make these homeowners or farmers whole.” 

Critics of such state level PFAS regulations, however, question whether they pass a cost benefit analysis and are justifiable. When new regulations were proposed to mitigate the risk of PFAS water contamination in Wisconsin, utility companies and the Wisconsin League of Municipalities urged state regulators to wait for federal standards. Wisconsin Manufacturers and Commerce (WMC), along with the Wisconsin Paper Council, questioned the science that was the basis for PFAS standards proposed by state health officials, referring to them unlawful. WMC, which is the Badger State’s chamber of commerce, is now suing to overturn PFAS regulations that were imposed by the Wisconsin Department of Natural Resources (DNR) without going through the proper and formal rule making process. 

“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, WMC’s executive vice president of government relations. WMC takes issue with the hazardous substances list that DNR created and is enforcing without having gone through the formal rule-making process to create enforceable standards. WMC is asking the courts stop the DNR’s enforcement of the new DNR-mandated PFAS cleanups, which impose significant costs on WMC member companies. 

Representatives from the Wisconsin business community, like their counterparts in other states, have criticized the additional costs associated with implementing and enforcing new PFAS standards. Given it the significant regulatory burden already borne by employers, the sensitivity to new regulations whose merit is questionable, as is the process by which they were imposed, is understandable to many. Federal regulations cost employers, workers, and consumers nearly $2 trillion annually, according to Competitive Enterprise Institute’s Wayne Crews, author of 10,000 Commandments, the annual report tabulating the cost of federal regulations. The federal regulatory burden is now greater than the total income tax burden and another layer of state regulations would saddle employers and consumers with additional costs that many will struggle to afford amid the highest inflation rate in nearly four decades. 

As with PFAS-related proposals in the states, there are also vocal critics of what is seen as unnecessary and costly PFAS regulation proposed at the federal level, which is the goal of the PFAS Action Act, federal legislation which would direct the EPA to designate PFOA and PFOS as hazardous substances. Congresswoman Cathy McMorris Rodgers (R-WA) called the PFAS Action Act “overwhelming, heavy handed and unscientific,” as well as an “aggressive expansion of federal power.” McMorris-Rodgers’ criticism has been echoed by others in Congress, such as Representative Tim Walberg (R-MI), who referred to the bill as “sincerely well-intended,” but warned that it would “hamstring our small businesses.” 

While Congress debates the PFAS Action Act and related litigation plays out in Wisconsin and other states, an EPA Scientific Advisory Board (SAB) is preparing to release recommendations for federal PFAS regulation later this summer. Those recommendations will be the culmination of four meetings held by the SAB since it was announced on November 10, 2021. Critics point out that such a hasty timetable, coupled with the limited and narrow stakeholder representation on the SAB, which consists for 47 members from 20 states, makes for a flawed process whose recommendations will be tainted. 

The EPA boasts that its PFAS SAB consists evenly of representatives from academia, industry, government, and NGOs. Critics point out that is not true. Of the 47 members of EPA’s SAB, only three of them represent affected industries and employers. While affected employers have only three representatives on the EPA’s PFAS SAB, 36 of the 47 members have backgrounds in academia. What’s more, states that would be most affected by PFAS regulations are not represented on the SAB. 

The EPA is reportedly considering whether to classify some PFAS chemicals as likely carcinogenic. The SAB recommendations could be used to justify such a classification. However, if some PFAS chemicals are going to be classified as carcinogens, the manner in which that is done should be transparent. Critics don’t believe the current EPA process has been sufficiently transparent, nor has it been comprehensive. 

The challenge with the PFAS regulations that have been proposed at the state and federal levels is that PFAS chemicals are comprised of, according to the EPA, more than 10,000 compounds. Instead of taking into accountthe unique chemical makeup and the various uses for individual compounds, proposed federal and state legislation treats them all the same. Many scientific experts worry that the EPA and federal lawmakers are seeking to categorically regulate PFAS chemicals without sufficient evidence or information. 

“My concern is that we don’t know a lot, and the chemicals are very different in structure, and I think we have to do proof of concept studies that actually give us a basis to understand when they are put together in environmentally relevant concentrations, that they are going to produce an additive effect,” said Dr. Angela Slitt, a professor at the University of Rhode Island. “There needs to be more debate, some more information on the correct study designs to be able to show additivity and show the additivity is actually empirically going to happen with PFAS instead of making an assumption.” 

Improper overregulation of PFAS chemicals — which are crucial components in smartphones, medical devices, firefighting foam, and numerous household products — could also prove counterproductive to the White House’s emissions reduction goals. A study published by PlasticsEurope found that, “Modern road transport emission standards could not have been achieved without these materials.” Without the availably of affordable PFAS chemicals, it will be harder to achieve President Biden’s aggressive emissions reduction goals, which aim “to reduce greenhouse gas emissions from new passenger vehicle sales by more than 60% in 2030.” 

As with the White House’s withhold release order holding up solar components at the ports, its continuation of former President Donald Trump’s solar tariffs, and its opposition to mining projects that produce the minerals necessary to construct more windmills and solar panels, improper regulation and prohibition of PFAS chemicals could prove to be another instance in which the Biden White House is taken action that works at cross purposes with its emissions reduction goals. 

While the debate over the PFAS Action Act plays out in Congress, expect state officials to continue introducing new regulations and legislation targeting PFAS chemicals. As has occurred on so many other issues, policies that get instituted in California are often proposed in other states, so it’s reasonable to expect legislation modeled after the California PFAS bills to pop up in other state capitals this year and beyond. It appears the debate over PFAS chemicals and how to regulate them will be with us for some time.