Did the White House Stop the EPA From Regulating PFAS?

A proposal to designate PFOA and PFOS as hazardous substances has been sitting at the White House for more than a year.

Illustration: Soohee Cho/The Intercept

The chemicals are linked to cancer, reproductive and developmental harm, liver problems, and immune dysfunction. They stay in the body for years — and persist in the environment indefinitely. And they’ve contaminated thousands of sites around the country, including hundreds where the military used firefighting foam laced with the chemicals. Yet somehow the industrial compounds PFOS and PFOA — part of a family of chemicals called PFAS — are not hazardous, according to the Trump administration.

Trump’s Environmental Protection Agency promised to designate the two chemicals as hazardous substances more than two years ago. And staff completed its work on the policy change in September of last year, according to agency insiders. But the proposed change to the law, which would help hold polluters liable for billions of dollars of costs of cleaning up the toxic chemicals, has stalled at the White House.

At a summit on the PFAS chemicals held on May 22, 2018, EPA Administrator Scott Pruitt pledged that the agency would designate PFOS and PFOA as “hazardous substances.” While seemingly a mere technical tweak, the change in the official categorization of the chemicals, which were used for nonstick coatings and in firefighting foam and have contaminated industrial areas and military sites, would help “to get accountability,” as Pruitt noted at the time.

“The PFAS Action Plan was just a plan to plan.”

Pruitt also said that the EPA would develop toxicity values for two other PFAS chemicals, GenX and PFBS, which were introduced as sustainable substitutes for PFOA and PFOS, respectively, but have since also been found to have contaminated water around the country and present many of the same health dangers as the chemicals they replaced. The development of the GenX and PFBS values, a critical step toward regulating the chemicals, was already underway and “should be done by December of this year,” Pruitt said back in 2018.

While Pruitt resigned amid a swirl of ethical scandals three months after speaking at the summit, both commitments made it into the PFAS Action Plan, which the agency issued in February 2019 under the leadership of Pruitt’s successor, Andrew Wheeler. At the time of the plan’s release, the agency said that “EPA has already begun the regulatory development process for listing PFOA and PFOS as hazardous substances.” Wheeler described the 72-page document as “the most comprehensive cross-agency plan it has ever undertaken to address a chemical,” according to a CNN report, which explained that action items were “expected to take months to implement.”

Yet almost two years later, the Trump administration has not finalized the hazardous substances designation for PFOA and PFOS, released the toxicity standards for the two chemicals, or taken several other steps promised in what it continues to tout as an aggressive plan to address PFAS pollution.

“This administration hasn’t taken a single action to reduce the ongoing emissions of PFAS, to clean up legacy PFAS pollution or any take any meaningful action to require water utilities to take PFAS out of the drinking water,” said Scott Faber, senior vice president for government affairs at the Environmental Working Group. “The PFAS Action Plan was just a plan to plan.”

Asked about the delayed action on PFAS, a spokesperson for the EPA referred me to statements EPA administrator Wheeler made in a speech he delivered at the American Enterprise Institute last week. “The PFAS family of chemicals have been around since at least the 1950s and no administration ever took them on,” Wheeler said to the audience at the right-wing think tank. “In 2019 EPA took the historic step of creating a PFAS Action Plan that uses all our program offices to deal with this emerging chemical of concern.”

While several policy promises remain unfulfilled, some of the work necessary to make those changes was completed long ago, according former EPA staff members.

Jim Woolford, who was director of the EPA’s superfund program from 2006 until retiring in April, said that he and his colleagues began work on the rule that would have designated PFOS and PFOA as hazardous substances in the late spring of 2019. “I can’t tell you how many hours my staff put into that,” said Woolford, who described several months of late nights during which his team pulled together scientific research that provided the justification for the hazard designation and coordinated with other offices within the EPA. After several rounds of edits, his team handed in their final draft of the proposed regulation in September 2019.

“Then it just sat there,” said Woolford.

Aggressive Delays

While the Trump EPA has openly expressed its derision for climate protections, the agency has fashioned itself as aggressively leading the fight for PFAS-polluted communities across the country. Yet even as the Trump administration is racing to finish some of its work in other areas, it is slow-walking promised changes to clean up PFAS contamination, according to environmental advocates.

The designation of PFAS as hazardous substances is a central focus of their criticism because it would be hugely consequential for polluted communities that have been unable to get polluters to pay to clean up the chemicals left behind from firefighting foam and industrial processes. If a chemical is deemed hazardous, its discovery automatically triggers an investigation and possible cleanup. Despite the fact that PFAS have been shown to persist indefinitely in nature and to cause multiple diseases, including cancer, PFAS still lack the designation, which gives agencies discretion over whether or not to clean them up. Critically, the hazardous substance designation would permit polluted communities to sue for cleanup costs.

In Oscoda, Michigan, near the Wurtsmith Air Force Base, PFOS-laden foam floats on lakes, and the fish are too contaminated to eat. Yet the Air Force has argued that, because the chemical isn’t officially a hazardous substance, “the federal government is immune” from a state law that would have required them to clean up the highly polluted base to the state’s legal standard.

“DOD will just not comply with it,” said Anthony Spaniola, an attorney and activist with Need Our Water in Oscoda. While Spaniola waits for the EPA to make good on its pledge to designate PFOA and PFOS as hazardous, he has been trying to devise other strategies to compel the military to clean up the pollution. “But even when the Air Force treats you like dirt, suing them is really difficult,” he said. “And every time we think we find a new legal avenue, it always leads back to the hazardous substances designation. We just can’t get past it.”

The military has pointed to the fact that PFAS aren’t yet officially hazardous in justifying their decisions not to clean up the chemicals in other recent cases. In New Mexico, the Air Force challenged a state permit that defined PFAS as hazardous substances last year. And the Air Force defended its decision not to clean up PFAS pollution that was beyond the boundaries of three bases in Georgia because the chemicals aren’t regulated.

Asked about the pollution in Michigan, New Mexico, and Georgia, Air Force spokesperson Mark Kinkade emailed a statement that said, in part, “The Air Force is part of the communities where we serve, and we share community concerns about this issue. The Air Force has aggressively tackled PFOS/PFOA contamination of drinking water, and will continue to take action to protect drinking water.”

While the statement acknowledged that the Air Force has already begun to address the releases of PFOS and PFOA “attributable to Air Force mission related activities,” it pointed out, “We are not yet in the part of the process when determinations are made concerning risk and the need for and standards to be used for cleanup. Consequently no decisions concerning cleanup have yet been made. We recognize people have many concerns about potential contamination, and we will continue to partner in good faith with local communities, state regulatory authorities, federal interagency partners, and Congress to address unacceptable risks posed by PFOS/PFOA.”

Kinkade’s statement also noted that “the Air Force looks to the Department of Defense to determine if the standards are to be used as potential cleanup levels.”

A statement from the Department of Defense in response to questions for this story said, “DoD has taken action to quickly address PFOS and PFOA in drinking water from DoD activities. No one is drinking water above the Environmental Protection Agency’s lifetime health advisory level where DoD is the purveyor of the water. DOD continues to work closely with the EPA and other partners to gain a better understanding of PFAS, including support for EPA establishing objective, science-based regulatory standards under the federal clean up law.”

Part of filtration system designed to filter out PFAS Forever Chemicals from the drink water supply, at Well #2 of the Horsham Water and Sewer Authority facility in Horsham, Pa., on August 22, 2019.

Part of a filtration system designed to filter out PFAS from the drinking water supply in Horsham, Pa., on Aug. 22, 2019.

Photo: Bastiaan Slabbers/NurPhoto via Getty Images

The Navy has taken a similar tack in Horsham, Pennsylvania, where it halted the removal of contaminated soil from the former Naval Air Station Joint Reserve Base Willow Grove in June 2019. “There is no requirement to take the soil out,” Gregory Preston, director of the Navy’s Defense Base Closure and Realignment Commission’s Program Management Office East, said by way of explaining the decision. “There are no limits, there are no regulations.”

Two suits filed by families living near the same base in Pennsylvania whose water was contaminated by PFAS-containing firefighting foam were dismissed in January because the chemicals aren’t officially considered hazardous. The Navy pays when PFOA and PFOS are present in drinking water at levels above 70 parts per trillion — a nonbinding health advisory level the EPA set in 2016. But even though many experts feel that level is not low enough to protect health, the Navy and other branches of the military won’t pay for providing clean water when there is contamination that doesn’t meet that threshold. Some districts that do remove lower levels of the chemicals are often left shouldering the burden of those costs.

“In this community alone, the townships went out of pocket $15 million,” said Mark Cuker, an attorney who represented one of the families who sued the military over the contamination near the Pennsylvania base.

Dozens of private well owners also had contamination that fell below the federal cutoff. “If it were a hazardous substance, they could have forced the Navy to provide bottled water, pay for a filtration system on their well, or connect them to public water,” said Cuker. Instead, part of the cost of addressing the water contamination was covered by a $10 million grant from the state — a solution Cuker said let the Navy off the hook.

“Why are the Pennsylvania taxpayers having to subsidize the cleanup of pollution that the Navy put into our community?” he asked.

A spokesperson for the Navy referred The Intercept to the Department of Defense response.

Tens of Billions at Stake

The thousands of sites polluted by military and industrial activity will cost tens of billions of dollars to clean up, according to experts. And the massive liability at stake both for the military and the chemical manufacturers is likely at the root of the failure to designate PFOA and PFOS as hazardous substances, said the Environmental Working Group’s Faber.

“No one believes PFAS pollution is something that should remain in our soil and water,” said Faber. “The only dispute is over who should pay for it. Should it be the companies that knowingly and secretly contaminated our water and soil for decades? Or should it solely be the taxpayers?”

Meanwhile, residents of contaminated communities across the country have expressed feeling powerless over polluters, and the companies that stand to lose if the change is finalized have the administration’s ear, according to Faber. “I’m confident that many of the industries who helped create the PFAS contamination crisis are also big donors to the campaign to reelect Donald Trump,” he said.

Although corporations are barred from contributing to federal candidates’ campaigns, the idea of holding companies liable for pollution is clearly of great interest to many large and influential corporations. 3M, DuPont, Chemours, and Daikin Industries were among the chemical manufacturers that lobbied on the PFAS Action Act, which was introduced in the House in 2019 and passed in January 2020. The bill calls for making PFOS and PFOA hazardous substances along with other steps to regulate the chemicals.

“No one believes PFAS pollution is something that should remain in our soil and water. The only dispute is over who should pay for it.”

While there are questions about whether chemical manufacturers may dodge liability for PFAS pollution by using an exemption to the Superfund law for manufacturers of useful products, other companies are likely to find themselves on the hook for cleanup costs if PFOA and PFOS are deemed hazardous. Oil companies, which have used firefighting foam to put out fires at refineries and rigs, may also face costly suits. Royal Dutch Shell, Phillips 66, BP, Exxon Mobil, and the American Petroleum Institute were among dozens of companies and trade associations that lobbied on the bill.

The EPA hasn’t officially backed away from its plan for the hazardous designation, but in January, the White House weighed in against the PFAS Action Act, saying that it “would create considerable litigation risk, set problematic and unreasonable rulemaking timelines and precedents, and impose substantial, unwarranted costs on Federal, State, and local agencies and other key stakeholders in both the public and private sectors.”

Some of the resistance in taking steps to regulate PFAS comes from the Department of Defense, according to Betsy Southerland, who worked at the EPA for 30 years and most recently served as director of science and technology in the Office of Water. Southerland resigned in protest of industry influence over the agency in 2017. The Defense Department reacted badly to the EPA’s release of a drinking water health advisory for PFOA and PFOS in 2016, according to Southerland, who oversaw the work on the health advisory. “DOD knew they had all this contamination, so they were furious,” she said.

According to Southerland, those tensions influenced guidance for the cleanup of groundwater near contaminated sites, which the EPA committed to at the 2018 summit. Such guidance typically includes three numbers — two lower values to guide monitoring and standard cleanup as well as a third higher emergency threshold, which allows the EPA to immediately step in to protect people from dangerous drinking water. But the groundwater guidance the EPA released at the end of 2019 didn’t include the crucial number that would allow the agency to take emergency action.

“When I saw that,” Southerland said, “I thought: DOD won.”

Regulatory Foot-Dragging

While it has issued a provisional toxicity value for PFBS to be used at Superfund sites, the EPA has yet to finalize the assessments of PFBS and GenX, which it released in draft form and shared with the White House Office of Management and Budget in November 2018. The delay sets back the process of setting binding limits on the chemicals under the Safe Drinking Water and Clean Water Act, which are built on these toxicity values.

Emily Donovan, who lives in Wilmington, North Carolina, where drinking water is polluted with GenX, has been eagerly anticipating those numbers for years. While she has been waiting, scientists have identified four other PFAS compounds from the same local plant that have been found both in the local drinking water and in the blood of people who drink that water. While the EPA hasn’t finalized the GenX value, it has yet to even announce plans to assess the toxicity of these newer compounds, which has infuriated Donovan. “We are continually seeing our neighbors get sick and the EPA can’t even figure out if the four new compounds in our blood in North Carolina are harmful,” said Donovan, who dismissed the commitments made in the EPA’s action plan as “propaganda.”

Part of the two-year delay in finalizing the GenX and PFBS standards can be explained by additional scientific requirements the Trump administration has imposed on them, said Southerland.

Even though the draft values had undergone extensive peer review before they were issued in November 2018, the Trump administration sent them “back to the National Toxicology Program to make sure the studies were appropriate,” Southerland said. “They’re looking for opportunities where they can challenge the scientific underpinnings.”

The treatment of the draft assessments was in keeping with the Trump administration’s foot-dragging approach to the chemicals, according to Southerland. “It’s just been a struggle to get anything done on PFAS because [the Office of Management and Budget] always tries to see if there’s a way to challenge the science,” she said.

Asked about the delays, a spokesperson for OMB emailed the following statement: “Your question demonstrates your lack of understanding of the interagency review process. OMB facilitates interagency review. Nothing is being ‘held up’ and the Administration is executing on its PFAS plans across many more agencies than just EPA. Your view is also likely too narrow.”

The glacial pace at which the EPA is evaluating the toxicity of just these two chemicals bodes poorly for its ability to evaluate the more than 600 other PFAS compounds that are in active use, Southerland said. “At that rate, it’ll take us generations to do them all,” she said. “If that’s the aggressive PFAS action plan that Wheeler touts all the time, then, wow. That’s very disappointing.”

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