The future of PFAS Regulation

Last November I had the privilege of speaking at a joint Interstate Technology & Regulatory Council (ITRC) and Australasian Land & Groundwater Association (ALGA) event on Working Together with PFAS. The video is available to watch at no charge, following registration.

Summary - ITRC and ALGA Workshop - Working Together on PFAS (cvent.com)

It was a conversational panel event where we answered set questions, so there are no slides and the video is rather small. If you are more a reading person than a listening person, I have included below the full text of what I said. My time goal was 8 to 10 minutes. I do recommend you listen to the other speakers.

Topic: Regulation

A.     Where do you think federal regulations and guidance will head in the next 12m, 2 years and then 5y?

B.     How do state PFAS guidance and regulations coexist with national/federal guidelines and standards? 

1 Intro

Firstly, for our American friends, Australia is similar to the US in that it is a federation of states. Under our constitution the states have responsibility for environmental protection. The Commonwealth may only step in on matters of national environment significance. These are currently under discussion, but do not include PFAS or any other contaminant in the environment. We have no federal EPA.

What we do have is a well-functioning informal collective of the state and territory environmental regulators, together with the federal environment department, under the banner of the Heads of EPAs (HEPA). We have a National Environmental Management Plan for PFAS that has been published by HEPA. Version 1 was released in 2018 (52 pages), version 2 in 2020 (134 pages) and version 3 has recently been released for public consultation (214 pages).

Each state or territory then implements the NEMP in their jurisdiction, using their various powers to recognise external guidelines. It is supposed to be nationally consistent, but isn’t really. Each state has their own particular drivers, regulatory frameworks and overlay. These are partly driven by politics and partly by personalities.

Drinking water is regulated by Departments of Health, rather than EPAs. The national drinking water guidelines are nationally consistent and implemented. In Australia, PFAS is not commonly an issue for drinking water.

2 Context

So let's get on the same page, what is regulation anyway and why do we need it?

Malcolm Sparrow says that the whole point of regulation is that government needs to intervene, for the public good, when market forces and private incentives do not naturally combine to serve the public interest. In the environmental context this is about addressing market failure, often due to negative externalities. That is a harm arising from the main activity, that occurs to others.

What is the market failure regarding PFAS that requires a special approach?  It is a “surprise” in that as a class of chemicals it is more persistent than originally thought, more bioaccumulative, and has ended up in places that were not expected. Without government regulation, there would be no driver to clean up contaminated sites, nothing to stop continued training with PFAS-containing AFFF, and no controls on reducing risks from the circular economy.

But it isn’t as simple as banning some chemicals and setting some low guideline values. Credible regulation is difficult. Evidence-based regulation and risk-based regulation is challenging in a space with significant uncertainty. With the exception of CFCs, the timeframe to manage “new” contaminants is typically measured in decades.

3  Principles

Credible regulation is usually founded on principles. There has been a lot of research in this space, often focussed on reducing perverse outcomes. So let’s look at a few. We are all familiar with the precautionary principle. We’ve learned some hard lessons from this principle in the tobacco and climate arenas. Don’t use a lack of complete knowledge as an excuse to not act. So regulators are acting, which is good.

But there are two other principles I would like to introduce to you. According to Arie Freiberg, proportionality is a concept that relates means to ends. In the context of government action, it generally means that the intervention employed should be that which is necessary to meet the regulatory objective, and that the means used are no more than is necessary to achieve that objective.

The principle of parsimony holds that a measure or intervention should not be more severe than that which is necessary to achieve the purpose for which the measure is designed. The rationale for parsimony is twofold: it is economically efficient, and it avoids unnecessary or possibly disproportionate infliction of harm.

Professor Freiberg concludes that connected with the concepts of proportionality and parsimony is the principle that any measure to be taken in response to a risk should be the least restrictive of the rights of the person.

4 The Future

And this is where I am concerned about the future of PFAS regulation. How does PFAS regulation hold up to these principles? The pendulum of regulation swings back and forth. There is a current drive to lower and lower limits of PFAS in the environment.

• How much of your freeway budget should be spent managing PFAS in the road corridor, but leaving PFAS behind on the other side of the fence?
• Who is responsible for treating PFAS in compost when our recycling sector is already under pressure?
• What is a small town to do with biosolids that are above the guidelines and a landfill that pipes leachate to sewer?
• What is society’s willingness to pay for PFAS management in addition to all the other competing demands?

I think that the regulatory sector will struggle for several years with the implementability of guidance. There are guideline values being generated in jurisdictions across the world that are built on toxicology with large uncertainty factors. This leads to triggers that are less than ambient concentrations. It’s a huge problem that PFAS contamination has been spread so widely, but the solution is not to clean it up at the receptor, but rather to address it at the source.

We’ve seen problems with rainwater and drinking guidelines, river water and ecosystems guidelines, compost, biosolids, construction spoil and so on. Where the guideline is lower than ambient, what is a project to do? How much water or soil should be treated? Should all compost and biosolids go to landfill? Be incinerated?

When everything is bad how should resourcing of solutions be prioritized? Many $millions have gone to consultants and contractors to manage PFAS that didn’t need to be managed, or where no tangible benefit was achieved. Future regulation must provide the tools to address the big problems and tolerate the small.

Projects need a “meaningfulness” test prior to intervention. Let’s try to focus investment of limited resources into solving problems that matter.

5 Regulation as a class

A very significant piece of the regulatory puzzle is chemicals regulation. In the future I think that PFAS in the chemicals sector will be regulated as a class. It is impractical to regulate one at a time. When PFOS was removed from key products such as Scotchguard in 2000, human blood levels in the US dropped from an average of 30 ppb to an average of 5 ppb in 2013. That’s amazing. But the chemicals sector is really smart. Swap a chlorine for a fluorine, add an ether, and you turn PFOS into F53B, which is subject to less regulation but may be just as harmful. You can’t beat chemists in a race. So I see the chemicals regulation sector bringing in a class approach to PFAS.  

I don’t see this happening with the contaminated land or water treatment sectors though. The toxicology is too difficult at the moment. Rather, environmental clean up goals will focus on a relatively small set of detectable PFAAs. We certainly need more than the 3 in the NEMP, as this causes risk of perverse outcomes by implying that short-chain PFAS may be discharged to the environment. Additionally, I think that the TOP Assay and leachability testing are not always very well applied.

In Australia a challenge is that regulators derive guideline values with care and nuance, and provide ways to apply them sensibly. However, most projects are not run this way. Construction contracts and professional indemnity insurance policies don’t understand nuance. So investigation levels become remediation criteria and trigger values become treatment goals.

6 So where should PFAS regulation end up?

Don’t sweat the small stuff. Don’t attempt to clean up ambient contamination. Put your efforts elsewhere. It is too late.

1. Work out a way to find the biggest problem, the highest contamination in the aquifer, the worst source of PFAS in the circular economy, the biggest input to the sewer.
2. Fix it and tell everyone.
3. Measure the resulting average PFAS in your product, waste, system, aquifer.
4. Find the next worst, fix that, evaluate.
5. Repeat until the net benefit or improvement is marginal. What is left can’t be improved using this method. Other regulatory approaches will be required.

Ensure that whenever you invest in an intervention, you have a way to measure the improvement you make.