US EPA sets guardrails for new PFAS

The US Environmental Protection Agency wants to ensure that all new per- and polyfluoroalkyl substances (PFAS) that enter the market are safe and won’t pollute the environment.

Under a framework announced June 29, the agency plans to require toxicity testing for new PFAS that are likely to enter the environment. But if a company can control releases of new PFAS and ensure that workers and the general population will not be exposed to them, the EPA is likely to approve them after reviewing only basic information like physical-chemical properties.

For decades, the EPA allowed new PFAS to be produced and marketed in the US without reviewing what harm they may pose. Some of those chemicals are now known to be harmful to human health at low levels, and they have contaminated the environment, including drinking water, across the country.

“People living in communities that have been exposed to PFAS contamination are right to be frustrated and angry. This shouldn’t have happened,” Michal Freedhoff, assistant administrator for the EPA’s Office of Chemical Safety and Pollution Prevention, said during a June 29 meeting hosted by the Environmental Law Institute to commemorate 7 years since the Toxic Substances Control Act (TSCA) was amended.

“Part of the reason that PFAS became such a problem was because of the failure of the old TSCA,” Freedhoff said. “If some companies had not deliberately hidden information about the harmful effects of PFAS from their workers, the public, and the EPA, the entire story could also have been a very different one.”

TSCA exempted thousands of chemicals that were on the market in 1976, when the law was enacted, from safety evaluations and regulations. And until the law was amended in 2016, the EPA reviewed only about 20% of new chemicals before they hit the market.

Under the framework, the EPA will individually review all new PFAS before companies can market them. Some will require more testing than others.

The approach aims to strike a balance between promoting innovation and protecting human health and the environment. PFAS are important for critical industries like semiconductors, Freedhoff said. She noted that the agency already has an agreement with semiconductor producers that specifies testing and risk mitigation requirements for photoacid generators, some of which are PFAS, used in lithography. Companies can import limited quantities of the substances in sealed containers or in solution and use them only in certain ways. “This approach is working,” she said.

Reactions to the new framework are mixed. The EPA will require more testing, and some PFAS won’t make it to the market under the criteria laid out, Robert Sussman, principal at Sussman & Associates, acknowledged at the meeting where Freedhoff revealed the new approach. Sussman represents plaintiffs in litigation seeking damages from PFAS contamination. But the framework also potentially green-lights new PFAS, he said. “A lot of folks are saying, ‘We think it’s a mistake to allow the commercial production of new PFAS.’ ”

It’s unclear how meaningful the new policy will be, said Daniel Rosenberg, director of the Federal Toxics Policy, People & Communities Program at the Natural Resources Defense Council, an environmental group. It depends on how the EPA defines PFAS, he said.

“The unscientific and indefensible so-called working definition of PFAS, which appears to be concocted by the [EPA’s] New Chemicals Program, excludes, without basis, hundreds if not thousands of PFAS from its definition, including some that have been found in people’s drinking water,” Rosenberg said. “The program continues to approve new PFAS for entry into the marketplace and likely into the food web and our bodies, forever, while pretending that they aren’t PFAS at all.”

The exact number of PFAS currently on the market is debatable, but the EPA and industry groups put it between 600 and 1,400. The American Chemistry Council, which represents chemical manufacturers, is urging the EPA to keep its definition of PFAS narrow so the agency can focus on those that are the greatest risk.

“The broader they make this definition of PFAS, the less focus they can put on those priority substances,” Steve Risotto, senior director of chemical products and technology at the trade group, said at the meeting. He noted that the framework “sounds a lot like what’s been going on since 2006 under the voluntary stewardship program that the EPA and industry committed to.” That program led to phaseout of the PFAS perfluorooctanoic acid, which is no longer produced in the US.