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This week the U.S. Food and Drug Administration (FDA) confirmed it had conducted a study finding that certain types of per- and poly-fluoroalkyl substances (PFAS) have entered American food and drinking water supplies; however, “[c]urrent FDA testing has found that most foods have no or very low levels of PFAS.” The FDA’s efforts are ongoing and the FDA launched a new website to summarize its efforts concerning PFAS.

PFAS are a group of chemicals, widely used in commercial and industrial applications for their heat resistance and ability to repel oil and water, that may pose health risks to humans. The health effects (if any), exposure levels and duration of exposure are the subjects of numerous on-going state, federal and independent studies. The EPA has pledged to establish a “maximum contaminant level” (MCL) for two of the most common PFAS chemicals—PFOA and PFOS—but environmental groups, public health advocates and certain states have argued that the federal environmental agency is moving too slowly and have urged Congress and state legislatures to set statutory and regulatory limits for the chemicals. Others argue additional data and human health studies are necessary before establishing a federal MCL.

The news of FDA action first broke after environmental groups obtained FDA presentation slides concerning a study analyzing samples of produce, meat, dairy, and grain products in the Mid-Atlantic region; a significant number of samples contained no detectable concentrations of PFAS. Of the 91 samples collected in 2017, and analyzed in 2019, the FDA represented that 14 samples had detectable levels of PFAS, but the samples were not likely to be a human health concern. According to the FDA, “while PFAS in food occurs primarily through environmental contamination, contamination in areas where food is grown does not necessarily mean the food itself will contain detectable PFAS.”

Samples are currently being taken from a dairy farm, and so far, all samples had detectable levels of PFAS, which prompted the FDA to advise the farm to discard the milk. The FDA is preparing data tables for the dairy samples to post to the new website. Prior sampling of produce, cranberries, seafood, and raw milk taken from 2012 to 2018 showed either no detection of PFAS or that the detectable levels were not likely to be a human health concern. The studies can be reviewed here.

As we have previously reported, certain states (like New Jersey) have already set standards for PFAS, and multiple bills are currently wending their way through Congress. Senate and House committees held hearings in May to consider 20 bills (14 in the House Subcommittee on Environment and Climate Change, 6 in the full Senate Environment and Public Works Committee). The bills with the best shot at passage are those with bipartisan support. They include bills to establish federal enforceable drinking water standards (Maximum Contaminant Levels) for total PFAS (S. 1473 and H.R. 2377), and bills requiring EPA to list PFAS as CERCLA/Clean Water Act hazardous substances (S. 638 and H.R. 535). Other measures would require EPA:

• to list PFAS as toxic chemicals, making them subject to the Emergency Planning and Community Right to Know Act’s Toxics Release Inventory (TRI) reporting program (H.R. 2577);
• to list PFAS as hazardous air pollutants under the Clean Air Act (H.R. 2605);
• to require EPA to regulate PFAS comprehensively under Section 6 of the Toxic Substances Control Act (H.R. 2600).

At the Environment and Public Works Committee hearing on May 22, Chairman John Barrasso identified PFAS as a priority for the Committee in this Congress, but expressed caution about the breadth of some legislative proposals, and the potentially broad new liabilities they could create. He also expressed opposition to bills that would take away or limit EPA’s ability to assess risks and develop standards based on the Agency’s substantive expertise. Congress’ actions so far suggest a high level of interest, on both sides of the Capitol and on both sides of the aisle, but also point to legislation that is likely to grant EPA authority and set ambitious deadlines, rather than interfering with or overruling EPA’s regulatory processes.

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Photo of Steven Barringer Steven Barringer

Steven Barringer is a member of GT’s Environmental and Government Law and Policy practice groups. Steve has a unique practice that combines substantive environmental law knowledge with deep government law and policy experience. He began his career as an attorney-adviser and Special Assistant

Steven Barringer is a member of GT’s Environmental and Government Law and Policy practice groups. Steve has a unique practice that combines substantive environmental law knowledge with deep government law and policy experience. He began his career as an attorney-adviser and Special Assistant to the Solicitor at the Department of Interior. In private practice, Steve has represented industry clients in numerous EPA rulemakings, and defended clients in enforcement actions brought by EPA and states. He has advised companies regarding compliance with federal and state environmental laws. Steve has represented parties involved at major Superfund sites – including several of the largest Superfund sites in the United States – both in remediation settlement negotiations and cost-recovery actions. He has advised clients on international treaty obligations applicable to the transboundary movement of mercury and other hazardous wastes, and has managed local counsel examining environmental laws in Central America and Europe applicable to the transboundary movement of such wastes.

Steve’s broad experience representing environmental clients led to his work on government law and policy matters. He has interacted with federal and state regulators on numerous rule-makings and policy developments. He advises clients regarding federal legislative and agency strategy, including use of the appropriations process to achieve policy goals. Steve served on an EPA advisory committee examining federal hazardous waste regulations, and was selected by the House Energy and Commerce Committee to represent industry stakeholders in negotiations to develop consensus amendments to the Resource Conservation and Recovery Act. He led an industry group advocating for reform of the federal mining laws. Representing industry clients, Steve has worked together with nongovernmental organizations to secure federal legislation banning the export of mercury from the United States.

Steve has been recognized by Who’s Who Legal as one of the top environmental practitioners representing the mining industry. One client described him as “absolutely the best.” He speaks and publishes on environmental legal and policy topics.

Photo of Bernadette M. Rappold Bernadette M. Rappold

Bernadette M. Rappold focuses her practice on federal and state regulatory issues related to energy, manufacturing, and the environment. Bernadette has substantial litigation experience and advises clients on regulatory compliance as well as the environmental, safety, and health aspects of numerous business and…

Bernadette M. Rappold focuses her practice on federal and state regulatory issues related to energy, manufacturing, and the environment. Bernadette has substantial litigation experience and advises clients on regulatory compliance as well as the environmental, safety, and health aspects of numerous business and real estate transactions, including water, air, and chemical hazards. Bernadette offers clients perspective gained through years of service at the Environmental Protection Agency. While serving as a director of the Special Litigation and Projects Division in the Office of Civil Enforcement at the EPA’s Office of Enforcement and Compliance Assurance, Bernadette led complex enforcement actions in response to violations of the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and other environmental statutes. Her work at the EPA covered a variety of economic and industrial sectors including the oil and gas, chemical, pharmaceutical, telecommunications, and agriculture industries.

Photo of Kaitlyn R Maxwell Kaitlyn R Maxwell

Kaitlyn R. Maxwell focuses her practice on environmental litigation. She advises clients on regulatory compliance issues and represents clients in litigation in state and federal courts. Her work includes litigation of major contamination cases under the hazardous waste and Superfund laws. Kaitlyn also…

Kaitlyn R. Maxwell focuses her practice on environmental litigation. She advises clients on regulatory compliance issues and represents clients in litigation in state and federal courts. Her work includes litigation of major contamination cases under the hazardous waste and Superfund laws. Kaitlyn also advises clients in transactions involving the sale of contaminated real property.