So called 'forever-chemicals' are polluting waterways. But regulating them is proving to be a long journey

By Brittany Trang

When Laura Olah heard that groundwater contamination from the Badger Army Ammunition Plant was heading toward the home in Merrimac where she and her husband were raising three small children, she headed to the library.

Olah educated herself about environmental pollution, pored through hundreds of pages of reports, and showed up at public meetings, evidence in hand.

That was more than 30 years ago.

Olah went on to co-found Citizens for Safe Water Around Badger with her neighbors. The idea was to battle carcinogenic solvents, PCBs, mercury, toxic explosives like DNT, and proposed open burning of hazardous waste "literally in (our) backyard."

Now, the group is fighting PFAS. And they are joined by activists across the country who are worried about contamination by these so-called "forever chemicals."

PFAS, which stands for per- and poly-fluoroalkyl substances, are manmade chemicals that have been manufactured and used since the 1940s. 

PFAS earned their "forever chemicals" moniker because they contain strong carbon-fluorine bonds that prevent them from breaking down naturally. These bonds allow PFAS compounds to provide stain- and water-proofing properties to fabrics and carpets, water- and grease-proofing to packaging such as pizza boxes or takeout containers, and heat-stability and "dispersibility" to firefighting foams. They are also used in manufacturing processes, such as making nonstick pans.

However, exposure to PFAS at even low levels has been shown to cause birth defects, several kinds of cancer including kidney and testicular, thyroid disease, high cholesterol, ulcerative colitis, decreased response to vaccines, and more.

These pollutants have contaminated thousands of Wisconsinites' drinking water in more than 50 cities, including Marinette-Peshtigo, Campbell, French Island, Madison, and most recently, Eau Claire.

Though industrial companies have known about the health risks from PFAS exposure since the 1960s and their dangers have been known to the public since the early 2000s, the federal government does not currently have drinking water standards for any PFAS contaminants. Attempts to curb PFAS also have faltered in the Wisconsin Legislature.

However, the U.S. Environmental Protection Agency announced this month that it might consider regulating PFAS as a class — or family — of pollutants in its next Contaminant Candidate List regulatory cycle. 

If the class of PFAS compounds makes it through subsequent evaluation rounds and ends up getting regulated, it would be a landmark win for PFAS-control advocates across the state and the country who have been frustrated by the lack of action.

9,000 individual compounds

The idea of considering PFAS as a class is critical because right now, each individual PFAS compound has to be tested individually.

In the last regulatory round, the EPA announced it would develop standards for two of the most prevalent PFAS compounds, PFOA and PFOS. However, the EPA is allowed to take more than four years to announce an enforceable limit for just those two compounds. 

"Last I saw, there were over 9,000 individual compounds that were identified as being in this class," said Mike Shapiro, a retired former deputy assistant administrator of the EPA's Office of Water. "No one thinks that we can test each one of those individually, thoroughly, for all the end points."

That is what polluters appear to be betting on.

In a case-by-case approach, regulating agencies would have to study the health effects and occurrence of every individual PFAS to set individual standards for each compound. This makes it easy to play what some call a game of "whack-a-mole" where chemical industries pivot from one PFAS compound to another similar PFAS compound when the first compound undergoes scrutiny.

It would be as if scientists had to test individual types of alcoholic beverages to determine whether each one individually caused impairment at a certain level. The idea of regulating them as a class, or family, would be the equivalent of putting all alcoholic beverages under one umbrella, with an across-the-board legal consumption limit.

According to Jim Zellmer, a deputy division administrator of the Division of Environmental Management at the Wisconsin Department of Natural Resources, there need to be studies on whether different PFAS have the same effect on human health, individually or in combination, before the EPA can regulate them together as they did in the 1970s for the polychlorinated biphenyls, or PCBs, that plagued the Fox River and Milwaukee Estuary.

Whether there is enough evidence to say that all PFAS should be regulated together has been a point of contention between industry groups and advocates like Olah, who think there is already enough evidence.

Former EPA official Shapiro said that he thinks both lines of reasoning — testing a subset of PFAS compounds and extrapolating them to create a framework for the entire class — will be examined in the EPA's process.  

Wisconsin Attorney General Josh Kaul said that moving toward a class-based approach, as the EPA did for PCBs, is important because there are many PFAS that Wisconsinites have been exposed to that we have less information about.

"I don't want to be in a position where we've regulated two types of PFAS but we're allowing contamination and quite possibly harm to be caused by lots of other types of PFAS," he said. "By addressing PFAS as a class, we can address this issue more holistically and do more to protect human health."

Other steps to curb PFAS

The EPA's inclusion of the PFAS family on this draft contaminant candidate list is a first step, said Shapiro. However, it's a long road to regulation.

Like contestants on "The Bachelor," PFAS are just one of many contenders for regulation. At any of the three elimination stages that will take place over the next four or so years, PFAS pollutants could get booted off the potential-regulation shortlist for not having enough evidence that they are toxic, not occurring in drinking water often enough, or not having enough impact that regulating them in drinking water would make a difference — for example, if other aspects of daily life expose people to higher amounts of PFAS than occur in drinking water. 

Even if the decision to regulate PFAS holds up, the compounds might get broken up in subcategories for regulation. That approach might not guarantee future brand-new PFAS would be covered and takes more time and effort.

In the meantime, other steps can be taken to curb PFAS, said Olah, pointing out that developing groundwater and drinking water limits for PFAS is just one of many things that need to happen simultaneously.

Because PFAS are used in burger wrappers, cosmetics, period underwear and many other common products, one way to decrease daily exposure is to limit non-essential uses. Maine passed a statute this month that will go into effect Jan. 1, 2030, prohibiting the sale of products with intentionally added PFAS. 

Another piece would be designating PFOA and PFOS as hazardous substances under the federal Superfund law. This is one of the measures included in the PFAS Action Act of 2021, which passed the U.S. House of Representatives last week with bipartisan support, 241-183. The bill also included a host of other steps.

Gov. Tony Evers and governors from Minnesota, Pennsylvania, Michigan and New York wrote a letter to Congress endorsing the act, especially setting standards for PFAS more quickly. 

What's happening in Wisconsin?

In Wisconsin, the Department of Natural Resources is working on rule-making for PFOA and PFOS groundwater standards. The Department of Health Services has recommended groundwater standards for 16 additional PFAS. The DNR is just beginning the process of rule-making for these compounds.

However, PFAS measures in the state Legislature have not fared well.

In December 2020, Senate Republicans blocked a rule to restrict PFAS-containing fire-fighting foam. In June, they removed almost all PFAS-related funding from the state budget.

The State Assembly did pass AB-392, which directs the DNR to administer a grant program for communities who are dealing with PFAS contamination. However, a memo brought forth by Rep. Katrina Shankland (D-Stevens Point) pointed out that the bill includes a waiver clause that restricts grant recipients from bringing actions against those allegedly responsible for the PFAS contamination.

Not only would this prevent property owners from suing polluters, but it might also preclude the DNR from "bringing enforcement action under the state’s environmental remediation law."

"That legislation would be, in my opinion, harmful to our efforts to protect water from PFAS," said Wisconsin Attorney General Kaul.

There is still another piece of PFAS legislation that might help Wisconsin residents concerned about PFAS: the Chemical Level Enforcement and Remediation Act, or CLEAR Act, which Governor Evers and co-sponsors state Sen. Melissa Agard (D-Madison) and state Rep. Samba Baldeh (D-Madison) re-introduced in April after it was ignored last session. The act covers many of the priorities that were taken out of the state budget.

But with Republicans in control of the Legislature, it's hard to see that measure having any success. Though they have acknowledged PFAS are emerging contaminants, they have pointed out the lack of federal regulation and what they see as a lack of extensive testing. 

Kaul acknowledged that there's still a lot more to learn about PFAS, their harms, and where they are in Wisconsin, but regarded this as green light, not a stop sign. Encouraging government at all levels to "invest in the kind of testing that can determine whether there are contaminants in the water," Kaul said, is an important step toward clean Wisconsin water.

At the national level, Wisconsin representatives Mike Gallagher and Ron Kind are working on improving private well owners' access to PFAS testing. The two representatives introduced the bipartisan "Test Your Well Water Act" in the U.S. House last week.

The people of Wisconsin "value public health, they value the health of their children, they value clean water, and being able to go fishing and eat the fish without concern, that they can have food products that don't have artificial and persistent chemicals in them," Olah said.

However, she doesn't think that politicians — locally and nationally — necessarily reflect what people want.

"The science on PFAS is so strong and so overwhelming and has been established not for years but for decades," Olah said. "For decades we've known about this, but the science isn't prevailing, and that means there's something else at play that is not science."