Hazardous chemicals and government silence — a dangerous mix

Imagine this: More than six million Americans have drinking water that is poisoned by a group of closely related chemicals. Some of the chemicals are known to cause liver and thyroid disease, immune system suppression, high cholesterol and cancer; others are the subject of suspicion and ongoing research.

Tort litigation has yielded multi-million-dollar verdicts for chemical exposure victims, prompted a documentary and a Hollywood feature film about the chemicals’ perils. Yet, the Environmental Protection Agency has failed to designate waste containing the chemicals as “hazardous”— a legal status conferring crucial health and environmental benefits. 

This implausible situation is the present reality with respect to “PFAS” (per- and polyfluoroalkyl substances), the chemicals manufactured by Dupont, 3M and others, to create non-stick pans, grease-resistant pizza boxes and water-repellent outdoor wear that have precipitated a nationwide contamination and human exposure crisis. While EPA has promised to establish long-overdue drinking water standards for certain PFAS, it is equally critical to regulate the chemicals under our federal waste laws, the Resource Conservation and Recovery Act and the law commonly known as Superfund. 

That is why our organizations have petitioned the EPA to designate PFAS wastes as “hazardous” immediately and to set strict standards for their management. Our petitions describe the plight of PFAS-affected U.S. communities from east to west and in the far north. Petitioners hail from Pennsylvania (where two communities near Philadelphia link a local cancer epidemic to intensive PFAS use on nearby military bases), Michigan (where many streams and lakes have fish consumption and recreational contact advisories related to PFAS), Colorado (where 600 private drinking wells in a single community are tainted with PFAS) to Alaska (where PFAS are bioaccumulating in the traditional food animals of Native Alaskans). Petitioners also include PhD scientists versed in the toxicological properties of PFAS and environmental regulators experienced with legal regimes appropriate for PFAS management.

Calling PFAS wastes what they are — hazardous — would trigger significant legal protections. First and foremost, it would require their cradle-to-grave management. Storage, transport and disposal of PFAS wastes would be subject to strict but common sense precautions and would be accounted for through a detailed tracking system. Disposal would have to occur at special hazardous waste landfills with systems to contain spills, detect leaks, prevent run-off and monitor groundwater for contamination. 

Groundwater is the source of drinking water for roughly half of all Americans and is notoriously difficult and expensive to remediate once polluted. “Hazardous” designation for PFAS waste would additionally prevent the U.S. from becoming an international dumping ground by imposing tight controls on waste importation.

Naming PFAS waste “hazardous” could also directly improve the health of people who have already been chemically exposed. For example, a judge recently denied medical monitoring benefits to residents of Montgomery County, Penn., who sued because their water supply was polluted by PFAS-containing firefighting foam, which had been used at nearby military facilities. Plaintiffs wanted the polluter — in this case, the U.S. Navy — to pay for ongoing medical monitoring to catch any health problems that develop as a result of residents’ exposure to PFAS. The judge noted that this kind of relief would have been available if the chemicals had been officially designated as hazardous.

A “hazardous” designation would make it easier to establish polluters’ liability for contamination and make them pay for PFAS clean-up, because polluters would not have typically available litigation defenses — lack of official classification. 

Finally, the “hazardous” label would unlock federal funding for urgent scientific research on disposing of PFAS more safely, such as through encapsulation in concrete, ultra-high-temperature incineration, or advanced chemical treatment techniques like those used to destroy chemical weapon stockpiles. 

Improperly disposed PFAS are already a nationwide scourge, with new sources of environmental contamination and pathways for human exposure continuing to be discovered. The COVID-19 crisis does not justify further agency delay, but instead amplifies the urgency of action on PFAS, in making plain the dangers of chemicals that create vulnerability-enhancing health conditions, and are specifically implicated in suppressing the human immune system. 

To begin to turn the PFAS catastrophe around, EPA must declare officially what scientists — and movie audiences — already know: PFAS waste is “hazardous” and must be handled and regulated accordingly.

Claudia Polsky is the director of the Environmental Law Clinic at UC Berkeley School of Law. Tim Whitehouse is the executive director of Public Employees for Environmental Responsibility (PEER). Tom Bruton is a senior scientist at the Green Science Policy Institute.