At last count, there were something like 20 different pieces of federal legislation to address per- and poly-fluoroalkyl substances (PFAS).  Some of this legislation appears to be well grounded, some may be more for political reasons, and some, if passed, would (in my humble opinion) be a disaster.

Current Proposed PFAS Federal Legislation

Among the aims the various proposals are funding to establish Maximum Contaminant Levels (MCLs), funding to facilitate the designation of PFAS as a hazardous substance under Superfund, and funding to study health implications.

There is also legislation that would require the Environmental Protection Agency (EPA) to take action on PFAS compounds under the Emergency Planning and Community Right-to-Know Act, the Safe Drinking Water Act, and the Toxic Substances Control Act.  EHS managers will want to pay close attention to this as it may affect future reporting requirements.

According to NYU Law, “For a variety of reasons, it appears that the appropriations process…and Department of Defense (DOD) authorization legislation are the most likely avenues through which Congress will take steps in the near term to study and address PFAS contamination.”

While there is universal agreement that we must do something with respect to certain PFAS, what we don’t need is bad legislation.  Details matter.

PFAS Compounds at Military Bases

Several bills address PFAS contamination at the more than 400 military bases nationwide.  These bills include the Prompt and Fast Action to Stop Damages Act that would require the development of a plan to clean up PFOA (perfluorooctanoic acid) and perfluorooctane sulfonate (PFOS) contamination for all irrigation water at or adjacent to a military base.

Last spring, we shared how one dairy farm in New Mexico was significantly impacted by PFAS from a nearby military base.  So funding to remediate water for farmers who have had the misfortune of being located in close proximity to military bases with PFAS contamination would likely receive bipartisan support.

All PFAS Are NOT the Same

While there is universal agreement that we must do something with respect to certain PFAS, what we don’t need is bad legislation.  Details matter.

S. 1790 and H.R.2500, the “National Defense Authorization Act for Fiscal Year 2020,” addressing the regulation of PFAS has some good provisions, including addressing the aforementioned impacted farms. However, this legislation would paint all PFAS compounds with a broad brush.

This, perhaps hastily-written, provision has not gone unnoticed.  In an August 26, 2019, letter to congress, a group of associations wrote to express their concerns.

Associations Ask Congress to Re-examine Proposed Legislation

In the letter, they write the following:

“We appreciate the bipartisan approach taken thus far and recommend that any Congressional action enable the appropriate agencies to carry-out [sic] the risk-based approach established in existing U.S. environmental law and policy.  As warranted, we support the regulation of specific PFAS chemicals, and it is important that Congress prioritize the cleanup of contaminated sites to protect communities.”

“PFAS have a wide variety of physical and chemical properties and uses.  Given this wide variation, it is inappropriate to circumvent existing regulatory authorities and regulate all PFAS as a single class.”

“These amendments would require the U.S. Environmental Protection Agency (“EPA”) to designate all PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”) and otherwise circumvent the existing regulatory process for determining hazardous substances and wastes.”

“Section 330A would require EPA to add all PFAS to the list of toxic pollutants regulated by the Clean Water Act (“CWA”) and establish effluent and pretreatment standards, which would render them hazardous substances under CERCLA.”

“Section 330O would require EPA to designate all PFAS as hazardous substances under CERCLA within one year.”

The letter also states, “There is no scientific risk-based justification for the listing of most PFAS.”  Remember, there are thousands of PFAS compounds.  As they differ in chemical structure, they differ in effects as well.

Mercury and PFAS

As way of example, children of the 1960s and 1970s, like me, were known to “play” with elemental mercury from broken thermometers, often in class rooms.  This is not safe by today’s standards and, thankfully, our children are now better protected.

In stark contrast, dimethylmercury is one of the strongest known neurotoxins.  In the late 1990s, two small drops of this toxin penetrated the gloves of Dartmouth chemist Karen Wetterhahn.  She died in less than a year.  Dimethylmercury is NOT elemental mercury.   Just as all mercury is not the same, we can say the same for PFAS; they are not all created equal.

We need to support good legislation to address the potential growing environmental impact of certain PFAS compounds.  Further, we need to promptly, but prudently, address sites impacted by PFOA and PFOS.  However, addressing this issue with well–intentioned but poorly-crafted and over-reaching legislation will only add more confusion to the PFAS quagmire.

Rational and Scientifically-Defensible Approach

Dragun created a PFAS Resources Page to help keep you informed on the rapidly-developing PFAS issue.  Also, Dragun’s team of senior scientists and engineers have extensive experience and knowledge in developing rational, defensible approaches to contamination, including PFAS.  Please contact me if you have questions or need help.  I can be reached at 248-932-0228, Ext. 125.

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