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Regulation of foam's toxic chemicals a moving target

From the JOURNAL SPECIAL REPORT: The toxic legacy of firefighting foam series
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A federal health organization was set to publish a study earlier this year that would cast serious doubt on levels of per-and polyfluoroalkyl substances (PFAS) the Environmental Protection Agency deems safe in drinking water.

But the report’s release was stymied by EPA and White House officials over concerns that it would create, according to emails from a Trump administration aide, a “public relations nightmare.”

“The public, media, and Congressional reaction to these numbers is going to be huge,” an unidentified White House aide wrote in the January email. “The impact to EPA and (the Defense Department) is going to be extremely painful. We cannot seem to get ATSDR (the Agency for Toxic Substances and Disease Registry) to realize the potential public relations nightmare this is going to be.”

Amid the backlash following the email’s disclosure, the ATSDR report was published June 20. It suggested slicing EPA levels nearly 10 times lower than the current value. It also recommended setting levels for two PFAS the EPA does not currently monitor, including one chemical closely associated with the firefighting foam that has contaminated soil, surface water and drinking water in Box Elder and Sioux Falls.

That controversy wasn’t novel to the debate surrounding PFAS. Rather, it was indicative of the system that has created today’s situation.

Scattershot standard

In 2009, the EPA set its first lifetime health-advisory level for two PFAS: pefluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). The level — 400 parts per trillion (ppt) or about 20 drops of water in an Olympic sized pool — was an assurance that humans could expect no adverse health effects from consuming water with such concentrations over the course of their lifetimes.

Seven years later, the assurance dropped to 70 ppt. Today, that level serves as a red line declaring water as safe when below the level and dangerous when above. It also determines if the DOD supplies long-term drinking water to affected homes, which typically only occurs when a home’s water source tests above the level.

Such advisory levels, while helpful as a reference point, are non-regulatory and non-enforceable, which means they do little to hold polluters accountable. Federal drinking-water standards, on the other hand, are enforceable. With a PFAS standard, the EPA can require liable parties to pay for the contamination’s investigation, cleanup and future long-term costs like providing alternative water sources. But no such standard exists today.

In its absence, some states have begun to take regulatory matters into their own hands. South Dakota, however, is not among those states and has no plans to set standards. As a result, the state cannot require public water systems to routinely monitor for PFAS.

Brian Walsh, an environmental scientist manager with the state Department of Environment and Natural Resources (DENR), said the state still has the power to force polluters to cleanup contamination when it pollutes groundwater or poses a threat to public health. Still, the DENR would like to see a federal EPA standard.

“We don’t have a national consensus and that’s really what we need,” said Mark Meyer, administrator of the DENR’s drinking-water program. “In the absence of them (EPA) taking the lead, it makes it more difficult for states. I think the consensus is ‘look, there needs to be a standard.’”

Sioux Falls city officials agree. Utilities Operation Administrator Trent Lubbers said that until a standard is established, deciding how to replace the city’s lost water production will be a challenge. Wells composing about 12 percent of the city’s water production are contaminated with PFAS above the EPA level.

“It’s difficult for us to come up with a strategy until we know what the regulatory standard will be,” Lubbers said.

Some states aren’t willing to wait. Vermont and Minnesota have set PFAS levels as low as 20 ppt and Washington recently became the first state to ban the chemicals in food packaging and firefighting foam. Meanwhile, New York and New Jersey are working toward a state drinking-water standard, and nine other states have formally adopted the EPA’s 70 ppt level to give them broader enforcement powers.

‘We don’t have any idea’

Before there were stymied reports or debate about EPA levels, there was David Savitz, Ph.D., professor of epidemiology at Brown University. Savitz, along with two other doctors, was one of the first people to study the health effects of PFAS in the mid-2000s in the wake of a class-action lawsuit against DuPont. The results didn’t get much attention back then. That changed around 2012.

“In the last five to seven years … it’s really just a flurry of recognition,” said Savitz, who chairs a state-funded team launched in Michigan in 2017 to combat the state’s PFAS crisis, where over 30 PFAS contamination sites have been identified. Different levels between the EPA, ATSDR and states are not surprising, Savitz said.

“What’s the right number?” he said. “Well, we don’t have any idea. I don’t think there is a right and a wrong. They’re just based on different assumptions and different calculations, but it’s all really in that ballpark.”

Part of the discrepancy is timing. The ATSDR report used new research on PFAS’s effects on the immune system, information that was unavailable to the EPA when it set its level in 2016. The ATSDR report also relied more on human studies; the EPA leaned on animal studies.

“These are just very approximate, these estimates,” Savitz said. “They’re all highly speculative, and I think that’s just going to remain that way.”

Other scientists see more cause for alarm.

“The significance of the conflict between the ATSDR’s minimal risk level and the EPA’s health advisory is that yet another group of scientists have looked at the evidence and decided that the EPA levels are too high to protect public health,” David Andrews, Ph.D., a senior scientist for the Environmental Working Group, said in a news release.

'Confidential business information'

Before companies like 3M and DuPont — two of the largest PFAS manufacturers over the past half century — can manufacture a compound, they must complete certain federal requirements. One is to submit what’s known as a “pre-manufacture notice” to the EPA detailing the chemical’s identity, production volume, use, disposal practices, potential for human exposure and available testing data.

But according to a 2007 EPA report, only 15 percent of those notices include information about the chemical’s potential impact on health. Most of the time, the EPA nonetheless reviews the information and gives the manufacturer the green light. From 1979 to mid-2016, the EPA required additional health/safety tests or limited a chemical’s production while safety concerns were addressed in only 10 percent of new applications.

Part of the problem isn’t the EPA but the laws. To suspend or reject a manufacturer’s chemical because of potential risk, the burden of proof is on the EPA. Elsewhere, like in the European Union, manufacturers carry that burden.

“The industry is a little backwards,” Meyer said of America’s regulations for chemical manufacturing. “These AFFF (firefighting foam) compounds have been banned, but there’s other replacement compounds that are being used instead.”

The replacements highlight another problem with EPA laws. Because the EPA must assess chemicals individually, rather than as a family, no one is quite sure how many PFAS there are. One study found between 500 and 700 different PFAS compounds at sites where firefighting foam was used. Toxicity questions abound.

The unknown number of PFAS isn’t an accident.

A 2005 report by the Government Accountability Office found about 95 percent of pre-manufacture notices sent to the EPA didn’t include information as basic as the chemical’s name and structure, making it nearly impossible to track.

For over 100 new PFAS notices reviewed by the Environmental Working Group where the chemical posed a risk to human health and/or the environment, more than 85 percent didn’t include the chemical’s name and more than 55 percent didn’t disclose the manufacturer.

The secrecy skirts by because it’s claimed to be “confidential business information.” According to the investigative news site The Intercept, “manufacturers have used the CBI (confidential business information) shield to withhold the names and identities of 17,585 of the chemicals now registered with the EPA.”

New and improved?

In August 2016, the Air Force spent $6.2 million on new firefighting foam without PFOA/PFOS. At Ellsworth and Sioux Falls Regional Airport, the installation is nearly complete.

The new foam still contains PFAS, but with a shorter six carbon-chain. Also known as C6 — the old PFOA/PFOS-laden foam had an eight-carbon chain, called C8 — manufacturers claim the health effects are mitigated because C6 breaks down faster in the human body.

According to a 2011 document from the European Food Safety Authority, the half-life of a six carbon-chain PFAS replacement made by 3M was between 12 and 34 days in the bodies of three workers. C8’s half life in the human body can be up to four years.

“The main feature is they are simply less persistent,” Savitz said of C6 and other short-chain PFAS. “They don’t last as long in people.”

The reduced persistence in humans doesn’t translate to the environment, though. In a DuPont report submitted to the EPA in 2010 for one of its C6 chemicals, “the biodegradation of the test substance was 0%.

Critics question the importance of reduced half-lives when people are continuously exposed. They also point to health studies showing similar health effects from C6 and C8 exposure. Savitz admitted as much.

“We don’t know exactly the subtleties of the toxicity, but the general strategy of making chemicals that don’t last as long, it seems logical that it would move things in a better direction,” he said.

One PFAS in opposition to that theory is the four-carbon chain Perfluorobutane sulfonate (PFBS), which has been linked in animal studies to lower infant body weight, delayed development, changes in thyroid hormone levels, cellular changes in kidneys and female reproductive effects in offspring exposed during pregnancy. In 2017, Minnesota set a drinking water “guidance level” at 2 parts per billion. PFBS was found in all 32 wells sampled on Ellsworth Air Force Base, with 13 wells testing above Minnesota’s guidance level.

The path forward

In 2001, a class-action lawsuit was filed against DuPont on behalf of around 80,000 people whose drinking water was contaminated by DuPont’s Parkersburg, West Virginia plant where Teflon was manufactured. Aside from creating the panel Savitz served on to conduct the early study of PFAS’s health effects, it ended with a $300 million-plus settlement that led to over 3,500 individual lawsuits, costing DuPont and its subsidiary, Chemours, another $671 million. The EPA also fined DuPont $16.5 million in 2005 for covering up its knowledge of PFAS toxicity since the 1950s, the largest civil administrative penalty the EPA had ever levied at the time.

Since then, more lawsuits have piled up against PFAS manufacturers like DuPont and 3M, which produces PFAS-laden Scotchgard. Lawsuits against companies that used PFAS-laden products in their goods and contaminated nearby waterways, like Saint-Gobain Corporation in New York and Wolverine World Wide in Michigan, have also begun to accumulate.

In one lawsuit this year in Minnesota, an initial $5 billion lawsuit filed by the state against 3M ended with an $850 million settlement. New York, Michigan, Alabama, Vermont and other states also have pending lawsuits and/or smaller settlements.

Two years before DuPont merged with Dow Chemical to form DowDuPont in 2017, it spun off its chemical division into a separate company, Chemours. Any future PFAS contamination liabilities from DuPont’s actions are now the problem of Chemours, a much smaller and less well-funded company many believe exists only to limit DuPont’s future liability.

South Dakota’s liable parties can’t resort to the corporate hide-and-seek games, though. The DENR has already identified Ellsworth Air Force Base and by extension, the Air Force and Department of Defense, as liable for contamination in Box Elder. In Sioux Falls, the South Dakota Air National Guard — again, the DOD — and the city are at fault.

South Dakotans wondering what may transpire in the future have plenty of case studies to examine. In fact, 40 states are currently experiencing PFAS contamination of some kind. Judging by past responses across the U.S. and by comments of those involved in the investigations at Ellsworth and Sioux Falls, continued private-well sampling is certain. Sampling of people’s blood for PFAS seems a real possibility.

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Contact Samuel Blackstone at samuel.blackstone@rapidcityjournal.com and follow him on Twitter or Facebook @SDBlackstone.

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City Reporter

City reporter for the Rapid City Journal.