Chris Tavenor, Law Fellow, July 24, 2018
In April, the Ohio Environmental Council submitted a Petition for Rulemaking to the US EPA to push them toward regulation of the toxic substance Perfluorooctanoic Acid (“PFOA”), along with its massive family of chemicals, known as perfluoroalkyl substances (“PFAS”). In the months following the submission of that petition, a lot of events have occurred. Here are the highlights:
Even now, the U.S. EPA still hasn’t regulated PFOA or any other PFAS, and they’ve not yet indicated that they intend to create such regulations.
PFOA: The Devil We Do Know
The conversation surrounding PFAS all started with the harm caused by PFOA, particularly from a DuPont plant (now owned by Chemours) along the Ohio River near Parkersburg, West Virginia. Since the early 2000s, researchers linked PFOA with numerous health risks, including cancer and thyroid disease.
The more important lesson that we can learn from the story of PFOA along the Ohio River, however, is that corporations sometimes produce chemicals, perform tests on those chemicals, and hide the results from the public’s eye for decades without revealing the risks.
The documentary titled “The Devil We Know” brilliantly highlights the narrative of the West Virginians and Ohioans who stood up to a corporation that devastated their sources of drinking water. Companies like to hide behind the lack of science proving the potential health risks of replacement chemicals, but it was the very fact that DuPont used PFOA before fully understanding its dangers that put this community on a path toward disaster. While DuPont no longer uses PFOA, it’s subsidiary, Chemours, now uses GenX, a different PFAS with potentially similar health risks.
And The Devils We Don’t Know
It’s really easy to throw around the word PFOA, GenX, or any of the other well known PFAS and make it sound like there aren’t many of these chemicals to regulate. But in fact, over 3000 PFAS have been catalogued, and the majority don’t have enough research to say whether they are dangerous or safe.
Companies hide behind the lack of data like it is an impervious shield. However, the U.S. EPA has the right to regulate a chemical even if the substance might pose a health risk, meaning they don’t need rock solid proof.
In practice, the U.S. EPA waits until it knows a substance has a particular danger to human health before it introduces a regulation. However, this choice doesn’t account for the reality of water pollution. Each day, factories around the country release unregulated chemicals into our waterways, including many PFAS, just like the DuPont plant released PFOA into the Ohio River for decades.
Even if thousands of those chemicals are perfectly safe for humans, many of them most likely are not safe. The recent report from the Agency for Toxic Substances & Disease Registry has already shown that the U.S. EPA will need to consider additional PFAS for regulation.
However, its very hard to determine what health effects stem from the aggregate build-up of many different chemicals in a person’s body, let alone identify which health effects stem from one single chemical. Thus, for many PFAS considered by the Registry, the researchers concluded that they “lacked sufficient data” to state a “minimum risk level” for the chemical.
The U.S. EPA needs to change its approach to toxic substance regulation. Instead of allowing companies to release substances into our waterways until science proves the danger of the substance, the agency should require companies to prove the safety of the substance.
The burden should be placed on the businesses, not on the health and safety of local communities. Otherwise, history will repeat itself, and more communities will experience Parkersburg’s story.