February 11, 2025 • 23 mins
Dr. Betsy Southerland, former EPA director of the Office of Science and Technology, joins Bloomberg Intelligence Litigation analyst Holly Froum to talk about the regulatory outlook for alleged cancer-linked PFAS, also known as “forever chemicals,” found in drinking water. Dr. Southerland discusses how and why the Trump EPA may roll back Biden-era rules passed in April that designated two of the most widely studied PFAS as hazardous under EPA Superfund laws and set maximum contaminant levels in drinking water. Dr. Southerland discusses how this could impact the safety of water for years to come and how Trump’s EPA may impact legal challenges to the rules by historic manufacturers like Chemours.
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Episode Transcript
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Speaker 1 (00:13):
Welcome to the Roots and Birds podcast hosted by Bloomberg Intelligence,
the investment research arm of Bloomberg out PEAT. In this
podcast series, we talk about the intersection of business policy
and law.
Speaker 2 (00:24):
My name is Holly Frome.
Speaker 1 (00:25):
I'm an analyst with Bloomberg Intelligence covering consumer and industrial litigation.
Today's podcast we'll focus on regulatory and other issues related
to pfast chemicals, what are also called forever chemicals. I'm
delighted to be joined today by doctor Betsy Sutherland, who
received a PhD in environmental science and engineering from Virginia
Tech and worked as senior scientist and manager of the
(00:46):
Water and super Fund program at the US EPI for
thirty three years before retiring in twenty seventeen. She's authored
several papers related to pfasts and has testified before Congress
on multiple occasions. Doctor Sutherland, can you tell us a
little bit about your background and what you did while
you worked at the EPA.
Speaker 3 (01:03):
Yes. After working for state and local government environmental programs,
I joined EPA in nineteen eighty four. I was a
scientist and manager in EPA's national Water and Superfund programs
for thirty three years, retiring in August twenty seventeen as
Director of the Office of Science and Technology. For my
(01:24):
career accomplishments at EPA, I received the Presidential Distinguished Rank
Award and was inducted into Virginia Tech's Academy of Distinguished
Alumni for the Civil and Environmental Engineering Department. After retiring,
I joined the Environmental Protection Network, a nonprofit organization of
(01:45):
former EPA career staff and political appointees who volunteered to
build the capacity of environmental agencies and communities to address
urgent health and environmental crises. At EPN, I led an
effort by multiple environmental groups to develop a p FOS
action Plan for the Biden EPA that influence the twenty
(02:08):
twenty one p FIST Strategic Roadmap.
Speaker 2 (02:11):
Can you expound on what you did for the Superfund program?
Speaker 3 (02:15):
Yes. In the Superfund Program, I was there for over
ten years. I was responsible for overseeing the cleanup at
sites around the country, providing technical guidance on cleanup levels
for contaminants, and adding new sites to the national list
of Superfund Sites.
Speaker 1 (02:32):
Interesting, and so you mentioned you worked to develop the
PPAs action Plan for the biden EPA that influenced the
twenty twenty one strategic growmap. Can you explain a little
more what work you did on a PPAs action plan.
Speaker 3 (02:43):
Sure, the EPA under Trump had developed a PFOS action
plan that lack key actions to prevent, control, and remediate
p FOS contamination. So I invited other environmental groups to
join me in developing a new PFIs action plan that
included those key actions. We sent our recommended PFAS action
(03:06):
plan to the Biden EPA in April twenty twenty one,
and we were gratified to see that the PFIST Strategic
Roadmap EPA released in October of twenty twenty one, incorporated
many of our recommendations.
Speaker 1 (03:20):
Listen background here. We've been hearing a lot about PFAS chemicals.
We keep hearing it's all kinds of products and its problem.
Can you tell us what they are, where they've shown up,
and why they are a problem.
Speaker 3 (03:31):
Per and polyfloro alkyl substances are a group of thousands
of manufactured chemicals that have been used since the nineteen
forties and many different consumer, commercial, and industrial products. Because
of their widespread use and persistence in the environment, PFIs
are found in the blood of people and animals. All
(03:53):
over the world and are present in water, air, fish,
and soil at locations across the US, US and the globe.
Only a fraction of the thousands of PFOS chemicals have
been studied, but those that have been studied have shown
the potential to cause development effects in children, decrease fertility,
(04:15):
increased risk of certain cancers, immune systems suppression, and increase
thyroid and liver diseases. Both EPA and the Agency for
Toxic Substances and Disease Registry continually search the world's literature
for PFOST studies in hopes of finding enough data to
(04:37):
determine the safe level of the twenty nine PPOs we
can measure in drinking water. EPA's Drinking Water Rule documents
the key studies on the six p foss being regulated
and explains that the most sensitive effects were selected for
the MCL for PFOA, the most sensitive effect within kidney
(05:00):
and testicular cancer, PFOS liver cancer, gen X liver toxicity,
p f h XS developmental toxicity, pf BS thyroid toxicity,
and pfn A developmental toxicity.
Speaker 1 (05:23):
Interesting and those appearing about them and some of the
lawsuits that we're following we've heard about those chemicals as well.
So Biden's EPA passed a rule in April setting maximum
contaminant levels for ppass and drinking water. And that rule
says pfo A and pfos canx four parts per trillion,
sets a hazard index for four other types of PPAs.
(05:45):
Can you explain what the NCL the maximum contaminant level
does and what a hazardous indexed.
Speaker 2 (05:51):
A hazard index means.
Speaker 3 (05:54):
When a contaminant occurs frequently in public water systems at
a level of healthcare concern. The Safe Drinking Water Act
requires EPA to establish a non enforceable maximum contaminant level goal,
or an MCLG, and an enforceable maximum contaminant level or mcl.
(06:17):
The MCLG is the level that poses no known adverse
health effects. The mcl must be set as close as
feasible to the MCLG, taking into consideration the limits of detection,
treatment technology, effectiveness, costs, and benefits. Because PFOA and pfos
(06:42):
are classified as likely carcinogens, EPA set their mclgs at
zero and the MCLs at four parts per trillion, which
is the lowest reliable detection limit using EPA's Drinking Water
Analytical mail For three other p FOS chemicals, EPA set
(07:05):
the MCL at ten parts per trillion, the exact same
level as the MCLG. Because these three p foss and
an additional PFOS often occur together and are expected to
have additive toxic effects, EPA also regulated them using a
(07:26):
hazard index MCL of one. The hazard index of one
ensures that even if each of the four co occurring
p fos is below the level of concern, their combined
toxicity will not exceed the level of concern.
Speaker 2 (07:45):
Got it?
Speaker 1 (07:46):
So you said that some of these are likely carcinogens?
Who has made that determination?
Speaker 3 (07:53):
EPA made that determination based on a review of one
thousand animal and human studies of PFOA and PFOS. EPA's
guidelines for carcinogenic risk assessment use a weight of evidence
criteria to classify a substance in one of five ways.
(08:14):
The highest classification requiring the most data is to be
a known carcentergen asbestos as an example of that. The
next highest data requirement is for classification as a likely
carcinogen PFOA and PFOS. Those data met that requirement.
Speaker 1 (08:36):
So you had said that with regard to the four
p fasts that are on this hazard indets, they are
likely to occur together.
Speaker 2 (08:45):
Do you know why those are likely to occur together?
Speaker 3 (08:49):
Well, all we do know is that monitoring data from
EPA's Unregulated Contaminant Monitoring program and from all the state
monitoring programs show that these can mcals often co occur
in public drinking water systems in many locations. We expect
this is because they're all used in so many consumer, commercial,
(09:10):
and industrial products that they're often released into the environment
and then show up together in our drinking water supplies.
Speaker 2 (09:19):
Got it? So?
Speaker 1 (09:20):
The Biden administration also passed a rule in April last
year designating the foss hazardous under superfund laws. Can you
tell us what that means and what power does that
designation give thee get?
Speaker 3 (09:33):
The Superfund law gives EPA the authority to clean up
pollutants or contaminants that are not designated as hazardous substances,
but that authority is much more circumscribed than for hazardous substances.
If a substance is not designated as hazardous, EPA cannot
(09:54):
require polluters that release this substance to notify the public
when a release occurs, EPA cannot clean up the substance
unless the agency can demonstrate that it poses an eminent
and substantial danger. EPA cannot compel the polluters to conduct
or pay for the cleanup, and cannot recover costs from
(10:18):
the polluters for actions EPA takes to investigate and clean
up non hazardous substances. As a result, the designation of
PFOA and PFOSS hazardous enables EPA to expedite cleanups, clean
up many more sites, and ensure the polluters pay for
(10:38):
the investigations and cleanup.
Speaker 1 (10:40):
So it's a really important, powerful tool. But there are
legal challenges now winding their way through the courts. They're
challenging both the maximum contaminant level and the super fund designation,
and both challenges argue that EPA's rules aren't justified by the.
Speaker 2 (10:55):
Costs of the rule.
Speaker 1 (10:56):
And you said, you thought you had said previously in
publication that you think Trump's APay may not defend those
rules in court. Can you explain why you think that is.
Speaker 3 (11:07):
In the recent Senate hearing on the fiftieth anniversity of
the Safe Drinking Water Act, Senator Shelley Moore Capito declared
that as the incoming chair of the Senate Environment and
Public Works Committee, she will work with the Trump administration
to redo the Biden administration's PFAS Drinking Water Rule and
(11:28):
the PFAS Hazards Substance Designation rule. Congress cannot get rid
of these rules through the Congressional Review Act because they
were finalized too early in twenty twenty four. I expect
that she will ask the new EPA administrator to roll
back these two rules, and that he will agree to
do so. If the Trump EPA decides to redo them,
(11:52):
they will stop defending these rules in court and take
a voluntary Remand.
Speaker 1 (11:57):
Yeah, so we'll be watching for that. It'll be interesting
to see what happens. Befo're following these lawsuits now. So
there are some major stakeholders opposing the rules. Can you
can you tell us who those stakeholders are? And one
of the challenges that have been raised in the briefing
(12:17):
in the petition where they oppose a rule is that
the cost of regulating these p fastest part of the
hazard indets is four point nine million dollars annually, whereas
the benefit is only six seven hundred and sixty thousand.
Speaker 2 (12:33):
Do you agree with that contention.
Speaker 3 (12:36):
Well, let's first talk about the stakeholders. The two water
utility trade groups, two industry trade groups, and the Comores
Company have challenged the p Fast Drinking Water standards and
my opinion, and it's my opinion, their benefit estimate for
treating the four hazard index chemicals grossly underestimates the real benefits.
(13:00):
These four PFIs chemicals were chosen for regulation because they
have known safe levels and thus can serve as surrogates
for the sixteen pfos chemicals that have been detected in
public water supplies but lack all toxicity information. The treatment
required to remove these four pifis will have the benefit
(13:24):
of reducing all the PFIs present and the drinking water supply.
EPA explained in the Drinking Water Rule that they could
not monetize the benefits of treatment reducing all the co
occurring PIFAs along with the regulated PIFAs. EPA also explained
that they could only monetize a fraction of the benefits
(13:47):
that result from treating the regulated pipis because they lacked
a methodology to monetize Number one reductions in the ability
of the immune system to fight disease, number two reductions
and decrease fertility, and number three decreases in thyroid and
(14:07):
liver disease, which are the very basis of the gen
X and PFBS safe levels, which are two of the
four chemicals that they're claiming they do have benefits for.
So again, there are seven hundred and sixty thousand dollars
couldn't possibly include the real basis of reducing thibroid and
liver disease, which are the need for GenX and PFBS MCLs.
(14:33):
The challengers did not account for the benefits of reducing
thibroying liver diseases or the benefits of reducing co occurring pfots.
Under the Unregulated Contaminant Monitoring Program EPA requires all large
and mid sized public water systems in the entire country
(14:54):
to monitor twenty nine p FOSS between twenty twenty three
and twenty twenty five. Final results will not be available
until twenty twenty six, but EPA has posted all the
data collected so far. The current data, representing only about
half of the total, results show that systems with detectable
(15:16):
pfas have between two and thirteen different pfas. This indicates
there will be major health benefits from reducing co occurring
but unregulated p fas, and again the litigants did not
take any of that into consideration.
Speaker 1 (15:33):
Interesting, so you had said that there are sixteen, So
these four pfas are asserted for sixteen p fas temicals
that are detected in water but lackxic toxicity information.
Speaker 2 (15:46):
Can you explain why they lack toxicity information?
Speaker 3 (15:52):
This is a problem really worldwide with the widespread contamination
throughout the globe on p fos, all of us are
trying desperately to study as many of the fifteen thousand
pfus that are in circulation in the world right now.
So it turns out that EPA in the Biden administration
(16:14):
spent the entire four years just coming up with an
excellent analytical method for drinking water that only includes twenty
nine pi fus, and we do not even have toxicity
studies on all twenty nine of those PIFAs. It's really
been up to EPA, the Agency for Toxic Substances, Disease Registry,
(16:38):
and university professors around the world to try to study
these chemicals and find out what their safe levels are.
Industry has played no help in the agency efforts nationwide
and worldwide to try to find out how toxic these
chemicals are that they have released into the environment.
Speaker 2 (17:00):
The EPA is not going to defend these rules. Do
you think that the EPA is.
Speaker 1 (17:03):
Going to propose a replacement standard for the MCL and
what time frame would we be looking at in terms
of implementation if they decided to go ahead and revise
those standards.
Speaker 3 (17:15):
So I expect the Trump EPA will do the p
Fast Drinking Water Rule with much higher MCLs for the
five p fos and possibly eliminate the hazard index MCL altogether.
EPA will need at least three years to propose a
new rule, take public comment, and finalize the rule in
(17:36):
twenty twenty seven. The final rule could require utilities to
come into compliance in three years, which is the traditional
compliance period, or they could give them five years, which
is what the current p FAS Drinking Water rule does.
Either way, depending on how high the MCLs are set
and how long the compliance period is given, very few
(18:00):
water systems would have to treat for pfos and they
wouldn't even have to do that until twenty thirty or
twenty thirty two. That would mean millions of people will
continue to drink these chemicals, increasing the risk of cancer,
reduce fertility, impaired child development, and suppressed ability to fight disease.
Speaker 2 (18:23):
That's very stuff.
Speaker 1 (18:24):
Do you think that Trump EPA would revise the super
Fund Designation rule?
Speaker 2 (18:29):
And if so, how so?
Speaker 3 (18:32):
Again? I expect the Trump EPA will redo the pfas
has a substance designation rule to exempt from liability municipal
wastewater treatment plants, drinking water treatment plants, landfills, airports, and farmers.
Republicans on both the Senate Environment and Public Works Committee
(18:53):
and the House Transportation and Infrastructure Committee have unsuccessfully tried
to pass laws provide these exemptions. EPA can go ahead
and do those exemptions for Congress, but they will need
at least three years to propose the new rule, take
public comment, and finalize the rule in twenty twenty seven.
(19:14):
I expect EPA will retain the requirement for immediate compliance
that was in the original rule. In twenty twenty four,
the Biden EPA issued the first ever chemical specific Enforcement
Discretion memo for pifos that stated the agency would not
pursue these five entities for Superfund liability EPA argued to
(19:40):
Congress that this enforcement discretion commitment would better protect those
entities from liability, and exemptions would have the following disadvantages.
Number One, it will set the dangerous precedent for other
hazardous substances and for other entities to get exemptions from
superf liability in the future. Number two, exemptions will not
(20:05):
shield these groups from citizen suits or torque claims, which
are far more likely than super fun actions to begin with.
And number three, exemptions will decrease the incentive for these
entities to reduce their p FoST contamination.
Speaker 2 (20:21):
The EPA was proposing as role.
Speaker 1 (20:23):
I remember when the waste companies were asking for inxemption
and the water companies were asking for inception, and so
it's like an interesting policy argument because they're saying, well,
we didn't we didn't create the problem, so we should
be exempted from these very expensive rules.
Speaker 3 (20:38):
The Trump EPA revises the rule to exempt the five
entities that Congress has identified. Polluters not covered by the
exemptions will still have to pay for remediation. The exempted
entities will not have to pay for cleanup, but EPA's
enforcement discretion memo already committed to shielding them from paying. Hopefully,
(21:01):
the exempted entities will decide to voluntarily reduce their p
FOS contamination in order to protect their communities from exposure
to these toxic chemicals. States can decide to use their
existing authority to establish technology based PFOS permit limits for
treatment plants and landfills, and municipal wastewater treatment plants can
(21:25):
require industries and landfills that discharge into their sewer systems
to pre treat for PIFOS. Frankly, it's very disappointing that
these readily available actions to reduce p FOS contamination have
not already been taken by most states.
Speaker 1 (21:45):
So if the Trump administration does go ahead and do
these things, do you think that disincentivizes defendants from settling
other pre fast contamination claims.
Speaker 3 (21:56):
I really don't think so. I don't think weakening those
rules will have an effect on PFOS litigation or settlements
under the Trump administration. I unfortunately expect that all of
EPA's efforts to prevent, control, and remediate p FOS will
be slowed and weakened as EPA steps back. However, I
(22:18):
expect the states will take the lead on regulating pifos.
A number of states have already established their own drinking
water standards for a variety of PFOS chemicals, and several
have banned or restricted pfas in certain products. Maine has
banned land application of sewage sludge because of PIFAs, and
(22:39):
Michigan has required all p FOS dischargers to municipal wastewater
treatment plants to pre treat their waste. The Safer State's
website tracks the large number of PFOS regulations and laws
currently in place in the states, throughout the country and
under consideration loss.
Speaker 1 (23:00):
The country interesting, so we'll be definitely, will definitely be
watching for those lawsuits to see what happens in court.
With the lawsuits challenging the rules, the super fun designation,
the n CLS, it'll be interesting to see what the
Trump administration does. Thank you so much, doctor Sutherland for
joining us today, and we'll look forward
Speaker 2 (23:21):
To speaking to you in the future.
Welcome to the Roots and Birds podcast hosted by Bloomberg Intelligence,
the investment research arm of Bloomberg out PEAT. In this
podcast series, we talk about the intersection of business policy
and law.
Speaker 2 (00:24):
My name is Holly Frome.
Speaker 1 (00:25):
I'm an analyst with Bloomberg Intelligence covering consumer and industrial litigation.
Today's podcast we'll focus on regulatory and other issues related
to pfast chemicals, what are also called forever chemicals. I'm
delighted to be joined today by doctor Betsy Sutherland, who
received a PhD in environmental science and engineering from Virginia
Tech and worked as senior scientist and manager of the
(00:46):
Water and super Fund program at the US EPI for
thirty three years before retiring in twenty seventeen. She's authored
several papers related to pfasts and has testified before Congress
on multiple occasions. Doctor Sutherland, can you tell us a
little bit about your background and what you did while
you worked at the EPA.
Speaker 3 (01:03):
Yes. After working for state and local government environmental programs,
I joined EPA in nineteen eighty four. I was a
scientist and manager in EPA's national Water and Superfund programs
for thirty three years, retiring in August twenty seventeen as
Director of the Office of Science and Technology. For my
(01:24):
career accomplishments at EPA, I received the Presidential Distinguished Rank
Award and was inducted into Virginia Tech's Academy of Distinguished
Alumni for the Civil and Environmental Engineering Department. After retiring,
I joined the Environmental Protection Network, a nonprofit organization of
(01:45):
former EPA career staff and political appointees who volunteered to
build the capacity of environmental agencies and communities to address
urgent health and environmental crises. At EPN, I led an
effort by multiple environmental groups to develop a p FOS
action Plan for the Biden EPA that influence the twenty
(02:08):
twenty one p FIST Strategic Roadmap.
Speaker 2 (02:11):
Can you expound on what you did for the Superfund program?
Speaker 3 (02:15):
Yes. In the Superfund Program, I was there for over
ten years. I was responsible for overseeing the cleanup at
sites around the country, providing technical guidance on cleanup levels
for contaminants, and adding new sites to the national list
of Superfund Sites.
Speaker 1 (02:32):
Interesting, and so you mentioned you worked to develop the
PPAs action Plan for the biden EPA that influenced the
twenty twenty one strategic growmap. Can you explain a little
more what work you did on a PPAs action plan.
Speaker 3 (02:43):
Sure, the EPA under Trump had developed a PFOS action
plan that lack key actions to prevent, control, and remediate
p FOS contamination. So I invited other environmental groups to
join me in developing a new PFIs action plan that
included those key actions. We sent our recommended PFAS action
(03:06):
plan to the Biden EPA in April twenty twenty one,
and we were gratified to see that the PFIST Strategic
Roadmap EPA released in October of twenty twenty one, incorporated
many of our recommendations.
Speaker 1 (03:20):
Listen background here. We've been hearing a lot about PFAS chemicals.
We keep hearing it's all kinds of products and its problem.
Can you tell us what they are, where they've shown up,
and why they are a problem.
Speaker 3 (03:31):
Per and polyfloro alkyl substances are a group of thousands
of manufactured chemicals that have been used since the nineteen
forties and many different consumer, commercial, and industrial products. Because
of their widespread use and persistence in the environment, PFIs
are found in the blood of people and animals. All
(03:53):
over the world and are present in water, air, fish,
and soil at locations across the US, US and the globe.
Only a fraction of the thousands of PFOS chemicals have
been studied, but those that have been studied have shown
the potential to cause development effects in children, decrease fertility,
(04:15):
increased risk of certain cancers, immune systems suppression, and increase
thyroid and liver diseases. Both EPA and the Agency for
Toxic Substances and Disease Registry continually search the world's literature
for PFOST studies in hopes of finding enough data to
(04:37):
determine the safe level of the twenty nine PPOs we
can measure in drinking water. EPA's Drinking Water Rule documents
the key studies on the six p foss being regulated
and explains that the most sensitive effects were selected for
the MCL for PFOA, the most sensitive effect within kidney
(05:00):
and testicular cancer, PFOS liver cancer, gen X liver toxicity,
p f h XS developmental toxicity, pf BS thyroid toxicity,
and pfn A developmental toxicity.
Speaker 1 (05:23):
Interesting and those appearing about them and some of the
lawsuits that we're following we've heard about those chemicals as well.
So Biden's EPA passed a rule in April setting maximum
contaminant levels for ppass and drinking water. And that rule
says pfo A and pfos canx four parts per trillion,
sets a hazard index for four other types of PPAs.
(05:45):
Can you explain what the NCL the maximum contaminant level
does and what a hazardous indexed.
Speaker 2 (05:51):
A hazard index means.
Speaker 3 (05:54):
When a contaminant occurs frequently in public water systems at
a level of healthcare concern. The Safe Drinking Water Act
requires EPA to establish a non enforceable maximum contaminant level goal,
or an MCLG, and an enforceable maximum contaminant level or mcl.
(06:17):
The MCLG is the level that poses no known adverse
health effects. The mcl must be set as close as
feasible to the MCLG, taking into consideration the limits of detection,
treatment technology, effectiveness, costs, and benefits. Because PFOA and pfos
(06:42):
are classified as likely carcinogens, EPA set their mclgs at
zero and the MCLs at four parts per trillion, which
is the lowest reliable detection limit using EPA's Drinking Water
Analytical mail For three other p FOS chemicals, EPA set
(07:05):
the MCL at ten parts per trillion, the exact same
level as the MCLG. Because these three p foss and
an additional PFOS often occur together and are expected to
have additive toxic effects, EPA also regulated them using a
(07:26):
hazard index MCL of one. The hazard index of one
ensures that even if each of the four co occurring
p fos is below the level of concern, their combined
toxicity will not exceed the level of concern.
Speaker 2 (07:45):
Got it?
Speaker 1 (07:46):
So you said that some of these are likely carcinogens?
Who has made that determination?
Speaker 3 (07:53):
EPA made that determination based on a review of one
thousand animal and human studies of PFOA and PFOS. EPA's
guidelines for carcinogenic risk assessment use a weight of evidence
criteria to classify a substance in one of five ways.
(08:14):
The highest classification requiring the most data is to be
a known carcentergen asbestos as an example of that. The
next highest data requirement is for classification as a likely
carcinogen PFOA and PFOS. Those data met that requirement.
Speaker 1 (08:36):
So you had said that with regard to the four
p fasts that are on this hazard indets, they are
likely to occur together.
Speaker 2 (08:45):
Do you know why those are likely to occur together?
Speaker 3 (08:49):
Well, all we do know is that monitoring data from
EPA's Unregulated Contaminant Monitoring program and from all the state
monitoring programs show that these can mcals often co occur
in public drinking water systems in many locations. We expect
this is because they're all used in so many consumer, commercial,
(09:10):
and industrial products that they're often released into the environment
and then show up together in our drinking water supplies.
Speaker 2 (09:19):
Got it? So?
Speaker 1 (09:20):
The Biden administration also passed a rule in April last
year designating the foss hazardous under superfund laws. Can you
tell us what that means and what power does that
designation give thee get?
Speaker 3 (09:33):
The Superfund law gives EPA the authority to clean up
pollutants or contaminants that are not designated as hazardous substances,
but that authority is much more circumscribed than for hazardous substances.
If a substance is not designated as hazardous, EPA cannot
(09:54):
require polluters that release this substance to notify the public
when a release occurs, EPA cannot clean up the substance
unless the agency can demonstrate that it poses an eminent
and substantial danger. EPA cannot compel the polluters to conduct
or pay for the cleanup, and cannot recover costs from
(10:18):
the polluters for actions EPA takes to investigate and clean
up non hazardous substances. As a result, the designation of
PFOA and PFOSS hazardous enables EPA to expedite cleanups, clean
up many more sites, and ensure the polluters pay for
(10:38):
the investigations and cleanup.
Speaker 1 (10:40):
So it's a really important, powerful tool. But there are
legal challenges now winding their way through the courts. They're
challenging both the maximum contaminant level and the super fund designation,
and both challenges argue that EPA's rules aren't justified by the.
Speaker 2 (10:55):
Costs of the rule.
Speaker 1 (10:56):
And you said, you thought you had said previously in
publication that you think Trump's APay may not defend those
rules in court. Can you explain why you think that is.
Speaker 3 (11:07):
In the recent Senate hearing on the fiftieth anniversity of
the Safe Drinking Water Act, Senator Shelley Moore Capito declared
that as the incoming chair of the Senate Environment and
Public Works Committee, she will work with the Trump administration
to redo the Biden administration's PFAS Drinking Water Rule and
(11:28):
the PFAS Hazards Substance Designation rule. Congress cannot get rid
of these rules through the Congressional Review Act because they
were finalized too early in twenty twenty four. I expect
that she will ask the new EPA administrator to roll
back these two rules, and that he will agree to
do so. If the Trump EPA decides to redo them,
(11:52):
they will stop defending these rules in court and take
a voluntary Remand.
Speaker 1 (11:57):
Yeah, so we'll be watching for that. It'll be interesting
to see what happens. Befo're following these lawsuits now. So
there are some major stakeholders opposing the rules. Can you
can you tell us who those stakeholders are? And one
of the challenges that have been raised in the briefing
(12:17):
in the petition where they oppose a rule is that
the cost of regulating these p fastest part of the
hazard indets is four point nine million dollars annually, whereas
the benefit is only six seven hundred and sixty thousand.
Speaker 2 (12:33):
Do you agree with that contention.
Speaker 3 (12:36):
Well, let's first talk about the stakeholders. The two water
utility trade groups, two industry trade groups, and the Comores
Company have challenged the p Fast Drinking Water standards and
my opinion, and it's my opinion, their benefit estimate for
treating the four hazard index chemicals grossly underestimates the real benefits.
(13:00):
These four PFIs chemicals were chosen for regulation because they
have known safe levels and thus can serve as surrogates
for the sixteen pfos chemicals that have been detected in
public water supplies but lack all toxicity information. The treatment
required to remove these four pifis will have the benefit
(13:24):
of reducing all the PFIs present and the drinking water supply.
EPA explained in the Drinking Water Rule that they could
not monetize the benefits of treatment reducing all the co
occurring PIFAs along with the regulated PIFAs. EPA also explained
that they could only monetize a fraction of the benefits
(13:47):
that result from treating the regulated pipis because they lacked
a methodology to monetize Number one reductions in the ability
of the immune system to fight disease, number two reductions
and decrease fertility, and number three decreases in thyroid and
(14:07):
liver disease, which are the very basis of the gen
X and PFBS safe levels, which are two of the
four chemicals that they're claiming they do have benefits for.
So again, there are seven hundred and sixty thousand dollars
couldn't possibly include the real basis of reducing thibroid and
liver disease, which are the need for GenX and PFBS MCLs.
(14:33):
The challengers did not account for the benefits of reducing
thibroying liver diseases or the benefits of reducing co occurring pfots.
Under the Unregulated Contaminant Monitoring Program EPA requires all large
and mid sized public water systems in the entire country
(14:54):
to monitor twenty nine p FOSS between twenty twenty three
and twenty twenty five. Final results will not be available
until twenty twenty six, but EPA has posted all the
data collected so far. The current data, representing only about
half of the total, results show that systems with detectable
(15:16):
pfas have between two and thirteen different pfas. This indicates
there will be major health benefits from reducing co occurring
but unregulated p fas, and again the litigants did not
take any of that into consideration.
Speaker 1 (15:33):
Interesting, so you had said that there are sixteen, So
these four pfas are asserted for sixteen p fas temicals
that are detected in water but lackxic toxicity information.
Speaker 2 (15:46):
Can you explain why they lack toxicity information?
Speaker 3 (15:52):
This is a problem really worldwide with the widespread contamination
throughout the globe on p fos, all of us are
trying desperately to study as many of the fifteen thousand
pfus that are in circulation in the world right now.
So it turns out that EPA in the Biden administration
(16:14):
spent the entire four years just coming up with an
excellent analytical method for drinking water that only includes twenty
nine pi fus, and we do not even have toxicity
studies on all twenty nine of those PIFAs. It's really
been up to EPA, the Agency for Toxic Substances, Disease Registry,
(16:38):
and university professors around the world to try to study
these chemicals and find out what their safe levels are.
Industry has played no help in the agency efforts nationwide
and worldwide to try to find out how toxic these
chemicals are that they have released into the environment.
Speaker 2 (17:00):
The EPA is not going to defend these rules. Do
you think that the EPA is.
Speaker 1 (17:03):
Going to propose a replacement standard for the MCL and
what time frame would we be looking at in terms
of implementation if they decided to go ahead and revise
those standards.
Speaker 3 (17:15):
So I expect the Trump EPA will do the p
Fast Drinking Water Rule with much higher MCLs for the
five p fos and possibly eliminate the hazard index MCL altogether.
EPA will need at least three years to propose a
new rule, take public comment, and finalize the rule in
(17:36):
twenty twenty seven. The final rule could require utilities to
come into compliance in three years, which is the traditional
compliance period, or they could give them five years, which
is what the current p FAS Drinking Water rule does.
Either way, depending on how high the MCLs are set
and how long the compliance period is given, very few
(18:00):
water systems would have to treat for pfos and they
wouldn't even have to do that until twenty thirty or
twenty thirty two. That would mean millions of people will
continue to drink these chemicals, increasing the risk of cancer,
reduce fertility, impaired child development, and suppressed ability to fight disease.
Speaker 2 (18:23):
That's very stuff.
Speaker 1 (18:24):
Do you think that Trump EPA would revise the super
Fund Designation rule?
Speaker 2 (18:29):
And if so, how so?
Speaker 3 (18:32):
Again? I expect the Trump EPA will redo the pfas
has a substance designation rule to exempt from liability municipal
wastewater treatment plants, drinking water treatment plants, landfills, airports, and farmers.
Republicans on both the Senate Environment and Public Works Committee
(18:53):
and the House Transportation and Infrastructure Committee have unsuccessfully tried
to pass laws provide these exemptions. EPA can go ahead
and do those exemptions for Congress, but they will need
at least three years to propose the new rule, take
public comment, and finalize the rule in twenty twenty seven.
(19:14):
I expect EPA will retain the requirement for immediate compliance
that was in the original rule. In twenty twenty four,
the Biden EPA issued the first ever chemical specific Enforcement
Discretion memo for pifos that stated the agency would not
pursue these five entities for Superfund liability EPA argued to
(19:40):
Congress that this enforcement discretion commitment would better protect those
entities from liability, and exemptions would have the following disadvantages.
Number One, it will set the dangerous precedent for other
hazardous substances and for other entities to get exemptions from
superf liability in the future. Number two, exemptions will not
(20:05):
shield these groups from citizen suits or torque claims, which
are far more likely than super fun actions to begin with.
And number three, exemptions will decrease the incentive for these
entities to reduce their p FoST contamination.
Speaker 2 (20:21):
The EPA was proposing as role.
Speaker 1 (20:23):
I remember when the waste companies were asking for inxemption
and the water companies were asking for inception, and so
it's like an interesting policy argument because they're saying, well,
we didn't we didn't create the problem, so we should
be exempted from these very expensive rules.
Speaker 3 (20:38):
The Trump EPA revises the rule to exempt the five
entities that Congress has identified. Polluters not covered by the
exemptions will still have to pay for remediation. The exempted
entities will not have to pay for cleanup, but EPA's
enforcement discretion memo already committed to shielding them from paying. Hopefully,
(21:01):
the exempted entities will decide to voluntarily reduce their p
FOS contamination in order to protect their communities from exposure
to these toxic chemicals. States can decide to use their
existing authority to establish technology based PFOS permit limits for
treatment plants and landfills, and municipal wastewater treatment plants can
(21:25):
require industries and landfills that discharge into their sewer systems
to pre treat for PIFOS. Frankly, it's very disappointing that
these readily available actions to reduce p FOS contamination have
not already been taken by most states.
Speaker 1 (21:45):
So if the Trump administration does go ahead and do
these things, do you think that disincentivizes defendants from settling
other pre fast contamination claims.
Speaker 3 (21:56):
I really don't think so. I don't think weakening those
rules will have an effect on PFOS litigation or settlements
under the Trump administration. I unfortunately expect that all of
EPA's efforts to prevent, control, and remediate p FOS will
be slowed and weakened as EPA steps back. However, I
(22:18):
expect the states will take the lead on regulating pifos.
A number of states have already established their own drinking
water standards for a variety of PFOS chemicals, and several
have banned or restricted pfas in certain products. Maine has
banned land application of sewage sludge because of PIFAs, and
(22:39):
Michigan has required all p FOS dischargers to municipal wastewater
treatment plants to pre treat their waste. The Safer State's
website tracks the large number of PFOS regulations and laws
currently in place in the states, throughout the country and
under consideration loss.
Speaker 1 (23:00):
The country interesting, so we'll be definitely, will definitely be
watching for those lawsuits to see what happens in court.
With the lawsuits challenging the rules, the super fun designation,
the n CLS, it'll be interesting to see what the
Trump administration does. Thank you so much, doctor Sutherland for
joining us today, and we'll look forward
Speaker 2 (23:21):
To speaking to you in the future.
Host
Elliott Stein
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