What is PFAS?
Unless you are familiar with operations at a large manufacturing facility or a military installation, chances are you are unfamiliar with the term PFAS. Regardless of your familiarity with perfluoroalkyl substances, or PFAS (for short), it is highly likely that you have them in your body, and they are accumulating.
PFAS are a man-made family of chemicals, with PFOA and PFOS being the most prominent. These substances have been used for household and industrial purposes in the United States since the 1940s. They show up in food packaging, non-stick cookware, firefighting foams, and a variety of other products. They are also turning up in drinking water systems, especially in communities near a PFAS producing facility.
PFAS is commonly found in firefighting foams
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As of May 2020, PFAS contamination has been found in 1,582 locations in 49 states (5 sites in Virginia Beach and on the Peninsula). These are often called “Forever Chemicals,” because they do not break down over time. They are persistent in the human body and in the environment, and they build up over time. Although the full scope of the health effects are still being studied, it appears that these chemicals are associated with increased risk of certain cancers, increased cholesterol levels, decreased fertility, and preeclampsia. In short, PFAS have adverse effects on human health and the environment, and they last forever.
The Virginia General Assembly in the 2020 session enacted House Bill 586 (HB586). It directs the Virginia Commissioner of Health to measure the current levels of PFAS in our drinking water and offers that agency the option to develop recommendations for the maximum amount of PFAS that should be allowed in our drinking water. The new law took effect on July 1, 2020.
Who Regulates PFAS?
On the federal level, the United States Environmental Protection Agency (EPA) has played a key role in the assessment of PFAS in drinking water and raising public awareness as to the dangers of PFAS. In 2016, the EPA created health advisories for PFOA and PFOS at 70 parts per trillion. These advisories, however, are used only to provide information to state and local agencies and create no enforceable requirements.
A few years later, in February 2019, the EPA launched a PFAS action plan, in order to more uniformly and strategically address the effects of PFAS in the environment. With a year under its belt, the EPA has developed a new drinking water test method (EPA Method 533), continued monitoring PFAS, and in February 2020, proposed to regulate PFOA and PFOS on a national level (a “proposed rule” is not enforceable unless and until it completes the regulatory process, at which time it is issued as a “final rule”).
(D. Hammond / Shutterstock.com)
A federal law, the Safe Drinking Water Act (SDWA), applies to all “public water systems” in the United States (there are approximately 151,000). It creates enforceable limits on certain contaminants to ensure that the drinking water that comes out of the tap is safe for humans to drink. Currently, the EPA regulates more than 90 drinking water contaminants through this act, but there is no established maximum contaminant level (MCL) for PFAS.
When an MCL is established, it is enforceable through fines (imposed administratively or by a court) and through criminal prosecution. Further, every five years, the EPA is required to publish a list of unregulated contaminants that are suspected to be in the public drinking water systems. The SDWA authorizes the EPA to collect data on these (unregulated) contaminants and can support eventual regulatory determinations, if necessary. EPA is looking to monitor PFAS in the next cycle with a view toward establishing an MCL at a near-future date.
PFAS is commonly found in nonstick cookware
(MSPhotographic / Shutterstock.com)
Another federal law, the Emergency Planning & Community Right-to-Know Act unveiled the Toxic Release Inventory (TRI) list. Its purpose is to track certain chemicals that may threaten human health and the environment. Certain U.S. facilities, typically large facilities involving manufacturing, metal mining, etc., are required to report annually quantities of listed chemicals that they release into the environment, whether the release is to air or water.
This year, 172 PFAS chemicals have been added to the list, which brings the total amount of individually listed chemicals to 767. This list raises public awareness regarding chemicals that U.S. companies release into the environment. It was Supreme Court Justice Louis Brandeis who wrote that sunlight is the best disinfectant. In a classic example proving the general truth of this adage, many firms change their behavior by eliminating listed chemicals from their operation so as to do away with the need to publicly report that they are releasing the listed chemicals, which can sicken people, into the community. The list also supplies data that legislative bodies (such as the Virginia General Assembly) and regulatory agencies can use to protect human health and the environment through development of new regulations or enforcement of existing regulations.
In Virginia, the Virginia Department of Environmental Quality (“DEQ”) is the state’s version of the EPA. It writes the environmental regulations for Virginia, provides guidance to industry and the public regarding the environmental laws and regulations, and it also enforces these laws and regulations in Virginia. Water quality and supply fall within the DEQ portfolio of responsibilities. The DEQ has not yet been given the authority to regulate PFAS but this may change as a result of the data gathering mandated by HB586.
What is HB586?
The 2020 Virginia General Assembly enacted HB586, which is a first-step in the process of controlling PFAS in our drinking water. The new law requires the Commissioner of Health to assemble a work group to collect information about PFAS in our drinking water and report its findings to the General Assembly not later than December 1, 2021. Specifically, HB586 requires the work group to find out how much PFAS we have in our drinking water in Virginia, identify the sources that are releasing the PFAS into our drinking water, evaluate the effectiveness of the regulatory approaches for PFAS used by other states and by the federal government, and suggest an appropriate MCL that Virginia might use to control the levels in our drinking water for the various chemicals in the PFAS family of chemicals.
Does HB586 Change Things?
When reading the new law at face value, it may look as if it doesn’t change things. However, Virginia seems to be following the EPA’s lead by enacting HB586. Even with the push by the EPA to focus more attention on PFAS, this class of chemicals is still widely unregulated. Just this year, the EPA proposed to regulate two of the various PFAS chemicals (through issuance of a “proposed rule”) and the success of that effort remains to be seen.
HB586 causes Virginia to direct its focus on PFAS chemicals specifically, rather than evaluating a widespread list of chemicals. It forces the state to take some action in evaluating how these chemicals affect Virginia’s public drinking water and foreshadows regulations that will be developed at the state level, based on the work group’s findings. We are cautiously optimistic that, HB586 has set events into motion that will lead to an appropriately tailored solution that delivers safe drinking water to the people of Virginia.
If you have any further questions about PFAS, our experienced team is happy to help, feel free to contact us here.
A special thank you to our Summer Associate, Diamond Royster, for her assistance in preparing this article.