On June 3, 2019, the U.S. Food and Drug Administration (FDA) confirmed it had conducted a study finding that certain types of per- and poly-fluoralkyl substances (PFAS) have entered American food and drinking water supplies – in at least one case, PFOS, one of the most common PFAS compounds, was found in drinking water at concentrations 35 times greater than the U.S. Environmental Protection Agency’s (EPA) health advisory level of 70 parts per trillion (ppt). The FDA’s efforts are ongoing and the study has not been released publicly. According to CNN, the FDA will release the study and launch a new FDA website about PFAS this week.

PFAS are a group of chemicals, widely used in commercial and industrial applications for their heat resistance and ability to repel oil and water, that may pose health risks to humans. The health effects (if any), exposure levels, and duration of exposure are the subjects of numerous ongoing state, federal, and independent studies. The EPA has pledged to establish a “maximum contaminant level” (MCL) for PFAS chemicals, but environmental groups, public health advocates, and certain states have argued that the federal environmental agency is moving too slowly and have urged Congress and state legislatures to set statutory and regulatory limits for the chemicals. Others argue additional data and human health studies are necessary before establishing a federal MCL.

According to an FDA slide presentation recently obtained by environmental groups, the 2017 FDA study involved analyzing samples of produce, meat, dairy, and grain products in the Mid-Atlantic region; a significant number of samples contained no detectable concentrations of PFAS.

But at least one sample taken from a dairy farm showed PFAS contamination at levels in groundwater that prompted FDA to advise the farm to discard the milk. The FDA ultimately concluded that a “robust sampling plan will provide a better understanding of potential dietary exposure to consumers. . . .” We anticipate learning more about the scope and limitations of the FDA’s study once it is released in its entirety.

As we have previously reported, certain states (like New Jersey) have already set standards for PFAS, and multiple bills are currently wending their way through Congress. Senate and House committees held hearings in May to consider 20 bills (14 in the House Subcommittee on Environment and Climate Change; 6 in the full Senate Environment and Public Works Committee). The bills with the best shot at passage are those with bipartisan support. They include bills to establish federal enforceable drinking water standards (MCLs) for total PFAS (S. 1473 and H.R. 2377), and bills requiring EPA to list PFAS as CERCLA/Clean Water Act hazardous substances (S. 638 and H.R. 535). Other measures would require EPA:

  • to list PFAS as toxic chemicals, making them subject to the Emergency Planning and Community Right to Know Act’s Toxics Release Inventory (TRI) reporting program (H.R. 2577);
  • to list PFAS as hazardous air pollutants under the Clean Air Act (H.R. 2605);
  • to require EPA to regulate PFAS comprehensively under Section 6 of the Toxic Substances Control Act (H.R. 2600).

At the Environment and Public Works Committee hearing on May 22, Chairman John Barrasso identified PFAS as a priority for the Committee in this Congress, but expressed caution about the breadth of some legislative proposals, and the potentially broad new liabilities they could create. He also expressed opposition to bills that would take away or limit EPA’s ability to assess risks and develop standards based on the agency’s substantive expertise. Congress’ actions so far suggest a high level of interest, on both sides of the Capitol and on both sides of the aisle, but also point to legislation likely to grant EPA authority and set ambitious deadlines, rather than interfering with or overruling EPA’s regulatory processes.

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