United States: The Chemical Industry Challenges The EPA's New Lifetime Health Advisories For PFAS

In June 2022, the Environmental Protection Agency (EPA) released new lifetime health advisories (LHAs) for per-fluoroalkyl and poly-fluoroalkyl chemicals (PFAS). PFAS are a type of man-made chemicals found in many industrial and consumer products, soil and drinking water. According to the EPA, the new LHAs for PFAS in drinking water are "the level of drinking water contamination below which adverse health effects are not expected to occur." The new LHAs for PFAS are 3,000 to 17,000 times lower than the previous 2016 levels, which now means that even the amount of PFAS found in rainwater is considered "unsafe." While the LHAs are not binding regulations, they do provide guidance to federal, state and local governments in developing binding regulations, including those for future Maximum Contaminant Levels (MCLs).

The scientific basis for these drastic reductions in the LHAs has been called into question. In fact, the American Chemistry Council (ACC) recently filed suit against the EPA seeking to challenge the new LHAs for PFAS, noting that "EPA's revised [LHAs] for PFOA and PFOS reflect a failure of the Agency to follow its accepted practice for ensuring the scientific integrity of its process." Although the EPA acknowledges that drinking water standards for PFAS must be based on the best available science, ACC alleges that the EPA relied upon data, which was not peer-reviewed by the Agency's Science Advisory Board when it published its new LHAs. Interestingly, the EPA even admits on its own website that 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 may adversely affect people, or how PFAS can be eliminated from drinking water supplies. Despite these unknowns, the EPA nonetheless promulgated LHAs which are so low and cannot be detected by current EPA methods, further calling into question the scientific validity of the Agency's LHAs. In addition to the suit filed by ACC, there have been multiple lawsuits¹ which seek to overturn the LHAs on two grounds: there no definitive studies that demonstrate PFAS actually causes any adverse health effects in humans; and even those studies that suggest a link between PFAS exposure and human health problems are unable to determine a minimum level of exposure where such health effects, if any, are expected to occur.

Although the LHAs are unenforceable, they will likely serve as the foundation for future federal, state and local regulation of PFAS. While it is critical to protect human life, any effort to quantify maximum safe levels of exposure must be based on sound science, as any regulations will have a profound impact on the US economy and virtually every industry. For example, regulations that lower the MCLs or ban the use of PFAS² could derail President Biden's plan to return semiconductor manufacturing to the US, as a large production of advanced semiconductors requires PFAS. Moreover, unnecessarily low regulatory levels or bans could harm renewable energy efforts and negatively impact the aerospace, automotive, building and construction, electronics, and pharmaceutical industries, to name a few, as there are no practical substitutes for many PFAS applications.

While the EPA's stated mission is to protect people and the environment from significant health risks, it is critically important that the EPA base its actions, including promulgation of LHAs and future regulations, on sound scientific principles. Failure to do so could overstate the risks associated with particular PFAS chemicals, and have a profound negative effect on the US economy without any analogous positive impact on human health.

Footnotes

1 The Chemours Company ("Chemours") recently filed suit against the EPA challenging its LHA for GenX PFAS chemicals, claiming that the EPA relied on bad science in establishing the LHA. Specifically, Chemours accused EPA of using scientific data that its own peer reviewers call "extreme" and "excessive."

2 Maine has adopted a policy to ban all uses of PFAS, while eleven states have taken action to eliminate PFAS in food packaging. Additionally, six states are eliminating PFAs in textiles and three states will eliminate PFAS in cosmetics.

Author Elizabeth Gross is an MG+M intern who is currently studying environmental science.

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