You Can't Get Fooled Again

EPA Sprints to Keep PFAS Rules Safe

The first of a pair of posts on new EPA rules on PFAS or "Forever Chemicals". A list of all PFAS posts to date is here.

For readers who live on Whidbey Island or nearby, I'll be speaking about water in Oak Harbor on April 23rd Whidbey's Water Future In a Changing Climate - Whidbey Earth & Ocean Month.

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Why the rush?

In 2016, the EPA figured that it would have plenty of time during the Hilary Clinton administration to complete rulemaking work started during the Obama administration. It was not to be. One of the projects that languished for the next four years was the development of new rules for PFAS in drinking water and toxic cleanup. But it's not enough just to complete the rules under the current administration. The Congressional Review Act allows an incoming congress to void rules released in the final sixty working days of the previous congress. That "look back" period could begin as soon as early May, depending on the as yet unknown dates of recesses, so federal agencies are rushing to to get rules on the books before the deadline.

This is not a hypothetical risk. In 2000 in the final days of the Clinton Administration, the EPA lowered the limit for arsenic in drinking water from 50 parts per billion (ppb) to 10 ppb. In 2001, George W Bush's new EPA head, Christine Whitman, rescinded that rule. It was ultimately reinstated after public uproar and action in Congress. At the end of this administration, the EPA is following George W Bush's own inimitable advice:

“There's an old saying in Tennessee — I know it's in Texas, probably in Tennessee — that says, fool me once, shame on — shame on you. Fool me — you can't get fooled again."

George W Bush

The rule on PFAS in drinking water was released last week and is the focus of this week's newsletter. A rule on formally listing some PFAS compounds under CERCLA, better known as the Superfund law, is expected this week.

Photo by Manki Kim on Unsplash

Who got this done, who got in the way, and who stood on the sidelines?

Got it done

We owe thanks first of all to the EPA headquarters and regional staff, for example in my own Region 10, who stuck to the science and resisted pressure to get these rules on the books. Paving the way were State environmental and public health staff, such as Washington State's Departments of Health and Ecology and their advisory teams, who pushed for state limits and national limits. None of it would have happened but for the long-suffering residents in affected communities and their allies who kept the issue on the front burner. Journalists from newspapers such as the Seattle Times and specialty outlets such as Circle of Blue and High Country News kept the story in the news. Non-profits such as Environmental Working Group and Toxic Free Future have played a vital role in lobbying and building public support. Dedicated people in government and elsewhere can make amazing things happen.

Got in the way

Manufacturers such as Dupont and 3M, formulators such as Tyco Fire Products and some end users such as airports and the military, supported by assorted lawyers, lobbyists, and politicians might be expected to come out against regulation. But some others, such as the American Water Works Association, who we might expect to care about safe drinking water, also lobbied against these rules.

Stood on the sidelines

The National Rural Water Association, Fire Departments, County Governments, for various not entirely unreasonable reasons, have been on the sidelines. Now this rule in in place, it's time for them to get in the game. We need their help.

What are the new limits?

The new EPA National Primary Drinking Water Regulation sets Maximum Contaminant Levels of 4 parts per trillion (ppt) for PFOS and PFOA, the two best studied PFAS compounds and those most likely to be found in drinking water from their use in firefighting foam. Limits for three others has been set at 10 ppt individually. A hazard index calculation covers combinations of these three with or without a fourth. Full details from the EPA are here: Per- and Polyfluoroalkyl Substances (PFAS) | US EPA

For an easier to follow explanation, please check out these great videos from some of my friends at Washington State Department of Health.

What now?

These new rules are a starting gun, not a finish line.

Among those on the community front lines, there's almost a sense of anticlimax. What so many have been wanting for so long has finally come to pass, but along with it comes the realization that so much more remains to be done. It will be hard for community groups to keep the momentum going.

The questions surfacing now are not new, they're just no longer hypothetical. How many water systems, private wells, and people are affected? How much money will be needed, and how will it get to those who need it? Who will do testing and treatment, and who will pay for it?

In Washington State alone, the Department of Health estimates that $1.6 billion will be needed for initial cleanup. The state has sued the manufacturers, but it will be years before we see that money. From the Seattle Times article:

“That money that eventually comes out of those lawsuits should be big enough to cover the cleanup of the water, so the taxpayers don’t have to foot the bill,” said Laurie Valeriano, executive director of Toxic Free Future. “Right now, people are suffering and drinking contaminated water, so the federal government does have to step in, and the state government has to step in to make sure people have safe drinking water.”

Navy and Airforce facilities in Washington, whose PFAS response we've covered here, have said they'll honor the new limits, but we have yet to see what that means in practice.

In the last PFAS post, we mentioned that Toxic Free Future sent a letter to Ecology requesting community input to the PFAS spending plan. They received a positive response and have been promised a meeting.

Although some states, such as Michigan, are ahead in forming a coordinated state strategy, others are in much worse shape. In Wisconsin, for example, the issue has become a political football. Democratic Governor Tony Evers had to veto a Republican-backed bill targeting PFAS chemicals because it would limit the Wisconsin Department of Natural Resources’ authority to hold polluters liable.

Next week

A major bottleneck has been finding money for testing to identify who needs help. We've pointed out before that in practice Washington State lacks the resources to test for PFAS unless it can identify a Potentially Liable Person (polluter) who can foot the bill. This week, the EPA should add some PFAS compounds to the CERCLA, or Superfund, list. The Superfund is designed to pay for testing and cleanup where no polluter able to pay can be found. We'll have to see how this helps on the ground. I'll be back next week to report on that news.

Until then, you might like this recording of The Who performing George W Bush's theme song Won't get fooled again.

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