Loyola University Chicago School of Law, JD 2019
President Trump has made his opinion of federal regulations known from the very start of his presidency. He clearly believes that federal regulations, especially those established by the Environmental Protection Agency (“EPA”), inhibit economic growth and unduly burden American businesses. However, it is equally unclear how his deregulatory efforts have benefitted anyone other than corporate America. Rather than utilizing his considerable influence to protect the health of the American people, President Trump and his administration have been hard at work unraveling such protections, much to the frustration of the states.
The Environmental Protection Agency has been a particular target of Trump’s administration. Through the deregulation of dozens of environmental protections, President Trump is taking steps to considerably diminish the agency’s power, if not completely abolish the agency itself. The EPA was established in 1970 in order to ensure human and environmental health. We have the EPA to thank for the clean air we breathe, unlike the dangerous levels of air pollution in countries such as India and China. The obvious question is, if the EPA is so integral to the health of Americans, why does President Trump attack it the way he does?
President Trump seems to be under the mistaken impression that environmental regulations are specifically created to be obstacles to corporate and economic growth. What he fails to realize is that EPA regulations, in their own way, contribute to the economy. After all, the economy cannot prosper without healthy workers. We need only look to the state of Michigan to see that there is a continuing need for EPA regulation. The state is wrestling with a serious per- and polyfluoralkyl environmental contamination problem.
Michigan’s PFAS Crisis
PFAS is a collective name for man-made per- and polyfluoralkyl substances contaminating water supplies throughout Michigan. Sometimes called “forever chemicals,” PFAS do not breakdown in the environment and can accumulate in the human body over a lifetime. Exposure to PFAS has been linked with increased risk for cancer, liver damage, and other serious ailments. According to the EPA, PFAS can be found in food packaged in PFAS-containing materials; commercial household products, including stain- and water-repellent fabrics, nonstick products, polishes, waxes, paints, and cleaning products; workplaces that manufacture products that use PFAS, such as Teflon and Scotchgard; drinking water that has been exposed to PFAS runoff; and living organisms, including fish, where PFAS had built up and makes dangerous to consume.
The EPA has yet to establish a maximum contaminant level (“MCL”) for PFAS chemicals, which would set a hard limit on the chemicals in municipal drinking water under the federal Safe Drinking Water Act. Instead, the EPA has merely issued a health advisory for PFAS chemicals, which describes an unenforceable concentration of PFAS below which adverse health effects are not anticipated to occur. This health advisory serves as informal technical guide to assist federal, state, and local officials by providing information on methods to sample and treat PFAS in drinking water.
The EPA’s current health advisory level is 70 parts-per-trillion (ppt). There are a couple of problems with this advisory level. First, some studies suggest that this limit is actually several times higher than is actually safe. Second, the advisory is non-enforceable, meaning polluters can ignore it if they want. Finally, it does not set up cleanup standards for use by state officials, leavings states adrift should they discover PFAS contamination.
Without a true federal standard, Michigan established its own enforceable standard mirroring the EPA’s advisory level at 70 ppt. This standard was set on January 10, 2018, when the state filed suit against Wolverine World Wide in federal court over the cleanup of 78 private wells in Kent County.
Wolverine World Wide is a shoe manufacturer in Rockford, Michigan that from 1908 to 2009, maintained its own tannery in downtown Rockford. The site on which the tannery once stood, as well as a handful of Wolverine waste dump sites, are now believed to have contaminated local water sources with high levels of PFAS chemicals.
The situation with Wolverine World Wide has shed a light on the potential for statewide PFAS contamination. Michigan officials are trying to be proactive. In 2017, Michigan officials created a Michigan PFAS Action Response Team, the first multi-agency team of its kind, in order to identify PFAS contamination in the state. To date, they have discovered PFAS in the drinking water of 1.5 million people in the state. Most of the contaminated water systems tested below the 70 ppt standard, but the scope of the contamination spread is alarming.
But PFAS is more than just Michigan’s problem. Both Illinois and Wisconsin are launching programs to determine the scope of the PFAS problem and to determine the best course of action to handle the emerging PFAS threat to basic water sources. Pennsylvania, Delaware, and New Jersey have all recently discovered high levels of PFAS in drinking water sources as well. In total, about 40 states are experiencing some level of contamination.
Where, then, is the EPA? The states are calling for a regulatory infrastructure that will set an MCL, which will allow states to compel investigation and cleanup, as well as establishing a consistent approach to addressing PFAS contamination nationwide. For the most part, the EPA has taken a backseat and allowed the states to search for solutions to PFAS on their own. The EPA has taken minimal action, and amount to no more than a bandage on a wound.
Currently, the EPA is trying to satisfy both the Trump administration’s deregulation agenda as well as the states’ demands for PFAS regulation. This balance is impossible to keep forever. At some point, the EPA will have to take one side or the other, and, especially in this case, we have to hope that the agency remembers that its mission is to protect the health of the American people.
On September 26, 2018, the Senate subcommittee on federal spending oversight and emergency management will hold a hearing on PFAS contamination. Hopefully, this hearing will shed light on the nationwide PFAS crisis, and establish a cohesive approach to tackling the issue. Perhaps, in the wake of this hearing, even the EPA will be compelled to take an affirmative regulatory action despite President Trump’s deregulation rhetoric.