New Year, New EPA: How the Biden Administration Can Catalyze PFAS Action in 2021

, Senior Analyst | January 6, 2021, 1:53 pm EDT
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During the past four years, awareness about per- and poly-fluoroalkyl substances (PFAS) has been heightened, but not because of notable government successes. Instead, communities across the country have worked with scientists, legal teams, nonprofit organizations, members of Congress, and even film production companies to raise awareness about the need for remedies. With their leadership, there has been progress made, with dozens of pieces of PFAS legislation introduced and the passage of PFAS provisions in the 2020 and 2021 defense authorization bills, but there’s much more work to do to help us understand the extent of the PFAS public health threat, limit current PFAS pollution, and require polluters to pay for cleanup of legacy contamination.

On its transition webpage, as a part of its environmental justice plan, the Biden team committed to “tackle PFAS pollution by designating PFAS as a hazardous substance, setting enforceable limits for PFAS in the Safe Drinking Water Act, prioritizing substitutes through procurement, and accelerating toxicity studies and research on PFAS.” This is a good start, but there’s much more that could be done to address this national public health threat, which is even more urgent in the face of a pandemic because of recent revelations of potential complications with vaccine response and immunity to COVID-19. As Michael Regan, Biden’s nominee for EPA and former North Carolina Department of Environmental Quality chief knows well, this issue is complex and the stakes are very high, which makes action urgent. The good news is that organizers in communities across the country have already laid out where the needs are greatest in this action agenda—it’s just a matter of listening and working with people on the ground to respond appropriately.

The Biden administration should:

Designate PFAS as a hazardous substance and hold polluters accountable

Time and time again, when faced with cleanup decisions, the Department of Defense and other legacy polluters have been able to punt on cleaning up sites with PFAS because the class of chemicals is not listed as a hazardous substance under EPA’s Superfund law, the Comprehensive and Environmental Response, Compensation, and Liability Act (CERCLA). This has meant that communities near these sites have been left to pay for testing and water filtration rather than putting that burden squarely on the responsible parties as should be the case. EPA has the data it needs to support this designation, since there is adequate evidence that they “may present substantial danger to public health or welfare or the environment.”

Create more opportunities for meaningful input from impacted communities

PFAS exposure is an environmental justice issue. In order to build trust with exposed communities and work to reverse inequities, the EPA head should meet, interact, and engage with community members more often and provide community members with greater access to agency staff, helping ensure that voices of underserved community members are heard and not perceived as less valuable than the input of other stakeholders. Specific measures include but are not limited to outreach to communities in providing information about a proposal, using appropriate means of communication, soliciting public comments, and creating a set of best practices for ensuring that communities have their views adequately presented and fully considered.

Further, EPA should halt unsafe practices of disposal of PFAS, like incineration, until the agency can prove that it is safe for communities nearby, which are often located in low-income communities and communities of color. A recent EPA guidance on methods of disposal and destruction of PFAS did not instill confidence that the standard operations are safe for frontline communities.

Ensure that the best available science informs EPA decisions on chemical safety

In accordance with the 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act, which updated the 40-year-old Toxic Substances Control Act, EPA is responsible for using the science to determine the safety of chemicals on the market. Regrettably, by design, industry already has the upper hand in chemicals regulation, with very little scrutiny of company safety data and little transparency associated with manufacturing data. Further, the scientific framework for risk assessments and evaluation of legacy chemicals has been undermined by EPA’s chemical office, most egregiously by appointee and former American Chemistry Council staffer, Nancy Beck. Although the Lautenberg Act specifically mandates protection for susceptible and highly exposed populations, evidence suggests that the EPA largely failed to assess the impact on susceptible populations while conducting its first 10 risk evaluations. As EPA promises to expedite toxicological reviews of PFAS (and other chemicals), it is imperative that decisions are inclusive of evidence relating to impacts on these populations.

Remove industry influence from decision-making on chemicals

President-elect Biden has said numerous times that his administration will listen to the science and that science will guide policy decisions. This must be true for all of EPA’s work, especially as it begins to assemble the best available science to support enforceable drinking water standards for PFAS and to reverse harmful changes made by Nancy Beck, who spent her tenure at the Office of Chemical Safety and Pollution Prevention making the already weakened TSCA amendments even weaker and actively excluding epidemiological data from consideration. In order to use all the best available science in its future scientific and regulatory work on PFAS, including the planned Integrated Risk Information System (IRIS) risk assessments for PFBA, PFHxA, PFHxS, PFNA, and PFDA, the EPA must work to reverse the rule issued this week that would restrict the use of independent epidemiological studies. Science, not politics, should be informing EPA’s decisions on PFAS.

Continue to fund and encourage research on PFAS

EPA should be working tirelessly to understand how to detect PFAS, how to best clean it up and dispose of it, and how to mitigate related health impacts. EPA’s Office of Research and Development (ORD) should also think about regulating PFAS as a class of chemicals rather than on a case by case basis, because as Linda Birnbaum (former head of the National Institute for Environmental Health Sciences) affirmed in her testimony before the Senate last year, “approaching PFAS as a class for assessing exposure and biological impact is the most prudent approach to protect public health.” ORD should learn more about the essential use framework that Europe is employing on PFAS and see how it could be deployed under existing statutes. There is also much more that can be done with regard to detecting and regulating PFAS air pollution, especially in environmental justice communities, and making sure companies are being held accountable for causing this problem in the first place.

Institute a coordinated federal science-based effort to address the PFAS contamination crisis

The pathways of exposure to PFAS are many, and while EPA has the authority to regulate much of the introduction and use of chemicals, there are other agencies that should be more actively coordinated and working strategically to make policy decisions that will relieve affected communities. For example, Food & Drug Administration should be doing more testing and regulating PFAS presence in food by way of food packaging, and the U.S. Department of Agriculture should be working to understand the scope and impacts of application of PFAS-containing sludge on U.S. crops. The Occupational Safety and Health Administration should be working with its National Institute for Occupational Safety and Health to better understand risks to the workforce exposed to PFAS, including firefighters. One possibility for ensuring a coordinated federal response to PFAS is through a White House Office of Science and Technology Policy (OSTP) memo creating a task force that would require representatives from all involved agencies to find funds to work on this issue, collaborate on solutions, hold listening sessions with members of the public, and make measurable progress on which the public can hold agencies accountable.

Reset advisory committees to ensure EPA advisors are independent

The Biden administration should begin to reverse the damage done by former Administrator Pruitt and Administrator Wheeler to gerrymander science at EPA and signal a commitment to balanced, independent advice by instituting a new nominations process for all EPA committees, while promoting transparency and public input and listening to its own staff recommendations. The current composition of the EPA’s Science Advisory Board features as vice-chair Barbara Beck, who testified on the lack of health risks as a result of PFAS exposure on behalf of 3M in a Minnesota lawsuit while working at a product defense firm, Gradient. The chemicals subcommittee, which presumably would be involved with peer reviewing EPA’s work on PFAS for the next three years, is chaired by Kenneth Mundt from Cardno Chemrisk, who has spent his career defending chemicals on behalf of the American Chemistry Council, ExxonMobil, and others. A strong science-based EPA needs a cadre of esteemed, independent scientists who will offer constructive feedback to help them do their job, not to stymie important efforts.

Rebuild capacity EPA’s chemicals and risk assessment programs and prioritize enforcement

More than any other agency, respondents to UCS’ 2018 survey on federal scientific integrity noted that workforce reductions due to early retirements and buyout incentive programs were making it difficult to fulfill the EPA’s mission. Respondents also reported extremely low levels of morale and job satisfaction; many reported a decline in the effectiveness of their offices. EPA must strengthen scientific capacity at the agency and encourage the most talented researchers to join the federal workforce and help fill gaps in the research, work on science-based policies, and design regulatory pathways that prioritize alternatives to forever chemicals.

Some options for EPA include: lifting hiring freezes on career-level scientific positions and working with the Office of Personnel Management as well as Human Resources to fast-track the hiring process for scientific new hires; increasing the number of EPA fellowship positions in science, technology, engineering, and mathematics; and scoping programs that would allow students near graduation to work with federal scientists, thereby encouraging young scientists to enter policy-related careers in science. Perhaps EPA could design fellowship and postdoctorate opportunities that focus on alternatives to harmful legacy chemicals to help finally get us off the path of regrettable substitutions.

President-elect Biden should keep his promises

As the 117th Congress takes shape and momentum continues to build on PFAS legislation (including the PFAS Action Act), the Biden administration can help put fresh eyes on the more than half-century problem of PFAS contamination and exposure, and lead through strong action. We will be working to ensure that the incoming administration’s PFAS commitments are more than just campaign promises, and hold it responsible for upholding scientific integrity to make progress protecting all Americans from these harmful environmental contaminants.

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