PFAS: Illinois’ Chance to Confront “Forever Chemicals”

What do pizza boxes, non-stick pans, make-up, firefighting foam, water-repelling clothing, and fast-food packaging all have in common? A simple, four-letter word: PFAS.[1] Per- and polyfluoroalkyl substances (PFAS) have been around for decades, appear in a vast variety of industries around the globe, and pose a substantial risk to human health and the environment.[2] Worst of all, they rarely degrade.[3] For this reason, they have been dubbed by the scientific community “forever chemicals.”[4]

PFAS is an umbrella term for a group of thousands of man-made chemicals characterized by their ability to repel water, grease, dirt, and oil.[5] PFAS are chains of one of the strongest chemical bonds in nature, which do not easily break down under natural conditions.[6] This has far reaching implications that are not readily apparent. When the rest of a product that contains PFAS breaks down, you are left with tiny remnants of forever chemicals. But where do they go and what happens to them?

Here’s the scary answer: they end up in the ground, in the water, and in you. PFAS are mobile in both water and soil.[7] Because of their widespread use in both industrial and consumer products these chemicals find their way into the environment through multiple sources including the disposal of items containing PFAS into municipal waste and wastewater treatment facilities; use of wastewater biosolids as agricultural fertilizers; production, manufacturing, and industrial processes; and use of firefighting foam. [8] These methods and more all release PFAS chemicals into the air, soil, and water. What happens when you eat, drink, or breathe these chemicals in? They stay in you for a very long time, potentially forever, and your body does not like it.

PFAS chemicals bioaccumulate, or build up, in the blood and organs of both humans and animals.[9] The most common forms of exposure are through ingestion of water and foods.[10] Studies have linked exposure to PFAS to a list of adverse health outcomes in humans, including negative reproductive, developmental, liver, kidney, and immunological effects in addition to low infant birth rates, thyroid hormone disruption, and cancers.[11] To make matters worse, almost every American sampled has been found to contain trace amounts of the chemicals in their blood.[12] With such a grim picture before us, one would hope that something has been done to confront these issues, however, depending on where you live that may not be the case.

How Will Illinois Regulate PFAS?

Illinois is one of the latest states to take up the issue of PFAS regulation and there are a number of different standards already in effect that may influence how strictly the state will regulate these forever chemicals.

The United States Environmental Protection Agency (EPA) is charged under the Safe Drinking Water Act (SDWA) to protect the quality of drinking water in the U.S.[13] This results in regulations that set Maximum Contaminant Levels (MCLs) for various substances within our drinking water, including metals, chemicals, and other harmful substances.[14] MCLs are legally enforceable standards that set a maximum permissible level of a contaminant in water that is delivered to users of public water systems.[15] The EPA has no established MCL for any PFAS compound. Instead, they have Health Advisory Levels (HAL), a non-enforceable standard that provides information on contaminants that can cause human health effects and that are known to occur in drinking water.[16] The HALs set by the EPA for two of the most common PFAS compounds, PFOS and PFOA, are 70 parts per trillion (ppt), which roughly equates to 70 drops of the chemicals into a swimming pool.[17] HALs are not legally enforceable, so if your water supply is found to contain levels that are higher than 70 ppts, federally there is not much you can do. And while under the new administration the EPA has implemented a PFAS council[18] and various PFAS actions that will “underpin better science, better future regulation, and improved public health protections,”[19] they are behind many local governments.

At least 22 states have drafted, proposed, or finalized health-based regulatory or guidance values for several PFAS compounds in drinking water, groundwater, and surface water.[20] Over 10 states have implemented regulatory standards for drinking water or groundwater.[21] Several states, including Michigan, New Jersey, and New York, have already gone beyond what the EPA has done and established their own statewide MCLs. These levels fall between 8 ppt and 16 ppt for PFOS and PFOA, well below the EPA’s HALs of 70 ppt.[22] These MCLs were developed through extensive studies and rulemaking procedures that were conducted by the states within the past two years.[23]

For example, Michigan began its rulemaking procedure in March 2019, and by July 22, 2020, adopted some of the strongest PFAS regulations in the country.[24] This was a result of extensive work done by a Science Advisory Workgroup (SAWG) who reviewed both existing and proposed health-based drinking water standards from around the nation and noted a trend of MCLs rising to stricter and stricter values as a result of evolving science. The science included toxicology and epidemiology studies as well as risk assessments of PFAS toxicity values in drinking water, resulting in some MCLs that were over ten times more stringent than the EPA’s HAL.[25] Michigan’s Department of Health and Human Services supported their strict PFAS MCLs by stating that the “MCLs must be at a level which is protective of its most vulnerable populations,” including the immunocompromised, young, old, and pregnant.[26] These legally enforceable, hardline standards protect these States’ residents from harmful levels of PFAS in their drinking water.

Illinois is on the cusp of developing its own MCLs, but it is not yet clear whether they will adopt levels closer to other states with regulatory levels, or the EPA’s HALs. In response to the lack of federal MCLs, the Illinois EPA (IEPA) began the process of enacting Illinois specific MCLs for certain PFAS chemicals.[27] This process is implemented in two phases, the first phase is concerned with information gathering, including a statewide sampling of water supplies.[28] The goal of the testing is to identify the extent of PFAS contamination in drinking water and the state has published the results as they evolve.[29] The testing, which is expected to be finalized this month, has already shown that thousands of Illinois residents’ drinking water has been contaminated with PFAS.[30] Over 100 contaminated water supplies have been identified, including Lake Forest, Waukegan, North Chicago, South Elgin, and Crest Hill.[31] While most of these public water sources are showing trace amounts of the chemicals, several have had to completely shut down their water supplies, either being forced to drink bottled water or switch water sources.[32] The dangers of these chemicals and their widespread presence vividly illustrate the need for enforceable standards.

Once the information-gathering phase concludes, IEPA will enact phase two by initiating the proposed rulemaking process in accordance with the Illinois Environmental Protection Act.[33] This will involve IEPA conducting outreach with stakeholders and submitting a formal proposal with the Illinois Pollution Control Board.[34] The Boards’ rulemaking procedures require at least two public hearings and the opportunity for public comment before new regulations are formally adopted.[35] It would be wise of IEPA and the Board to seriously consider replicating the MCLs adopted by other states in order to protect both the general and the vulnerable Illinois residents.

We will have to wait and see if Illinois will rise to be among the PFAS regulating leaders of the nation, like Michigan and New York. Or if they will sit back and wait for the EPA to publish their own MCLs years down the road. However, when it comes to time, unlike PFAS, we certainly do not have forever.

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[1] Basic Information on PFAS, EPA, https://www.epa.gov/pfas/basic-information-pfas (last visited Oct. 10, 2021).

[2] Id.

[3] Id.

[4] Per- and Polyfluoroalkyl Substances (PFAS), Ill. EPA, https://www2.illinois.gov/epa/topics/water-quality/pfas/Pages/default.aspx (last visited Oct. 10, 2021).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Basic Information on PFAS, EPA, https://www.epa.gov/pfas/basic-information-pfas (last visited Oct. 10, 2021).

[12] Id.

[13] 42 U.S.C. § 300

[14] Id.

[15] Drinking Water Contaminant Human Health Effects Information, EPA, https://www.epa.gov/sdwa/drinking-water-contaminant-human-health-effects-information (last visited Oct. 10, 2021).

[16] Id.

[17] Drinking Water Health Advisories for PFOA and PFOS, EPA, https://www.epa.gov/ground-water-and-drinking-water/drinking-water-health-advisories-pfoa-and-pfos (last visited Oct. 10, 2021).

[18] EPA Administrator Regan Establishes New Council on PFAS, EPA (Apr. 27, 2021), https://www.epa.gov/newsreleases/epa-administrator-regan-establishes-new-council-pfas.

[19] EPA Takes Action to Address PFAS in Drinking Water, EPA (Feb. 21, 2021), https://www.epa.gov/newsreleases/epa-takes-action-address-pfas-drinking-water.

[20] Sarah Grace Longsworth, Processes & Considerations for Setting State PFAS Standards, The Env’t Council of the States 9-10 (Updated Apr. 29, 2021), https://www.ecos.org/wp-content/uploads/2021/04/Updated-Standards-White-Paper-April-2021.pdf.

[21] Id.

[22] Safe Drinking Water Act Rules, N.J.A.C. 7:10, N.J. Dep’t  of Env’t Prot.  2, 30, https://www.nj.gov/dep/rules/adoptions/adopt_20200601a.pdf (last visited Oct. 10, 2021).

[23] Id.

[24] Michigan adopts strict PFAS in drinking water standards, Mich. PFAS Action Response Team (Jul. 22, 2020), https://www.michigan.gov/pfasresponse/0,9038,7-365-86513_96296-534663–,00.html.

[25] Jamie Dewitt, Kevin Cox, & David Savitz, Health-based Drinking Water Value Recommendations for PFAS in Drinking Water, Mich. PFAS Action Response Team 5, 26 (Jun. 27, 2019), http://www.akleg.gov/basis/get_documents.asp?session=32&docid=25701.

[26] Summary of Public Comments, The Mich. Dep’t of Env’t, Great Lakes, and Energy 5 (Jan. 16, 2020), https://www.michigan.gov/documents/egle/2020-02-21_Rulemaking_Public_Comment_Summary_681825_7.pdf.

[27] Process to Establish Maximum Contaminant Levels for PFAS in Illinois, Ill. EPA, https://www2.illinois.gov/epa/topics/water-quality/pfas/Pages/pfas-mcl.aspx (last visited Oct. 10, 2021).

[28] Id.

[29] Illinois EPA’s PFAS Sampling Network, Ill. EPA, https://illinois-epa.maps.arcgis.com/apps/opsdashboard/index.html#/d304b513b53941c4bc1be2c2730e75cf (last visited Oct. 10, 2021).

[30] Brett Chase, Dangerous ‘forever chemicals’ found in drinking water of thousands of Illinois residents, Chicago Sun-Times (Jul. 30, 2021), https://chicago.suntimes.com/2021/7/30/22589222/forever-chemicals-illinois-drinking-water-pfas-epa-testing.

[31] Id.

[32] Id.

[33] Process to Establish Maximum Contaminant Levels for PFAS in Illinois, Ill. EPA, https://www2.illinois.gov/epa/topics/water-quality/pfas/Pages/pfas-mcl.aspx (last visited Oct. 10, 2021).

[34] Id.

[35] Id.

Not Just Keystone XL: The Indigenous Fight for Environmental Justice

Indigenous groups have been the stewards of the American terrain for generations.  Yet, these communities are in a constant battle not only to protect their own sacred land from ecological harm but also to advocate for a stable climate.[1] The continued exploitation of indigenous land by large corporations and the U.S. government is a reminder that colonialism is still alive and well in today’s governance.[2]  The loss of critical habitat for many species that indigenous people rely on leads to not only the loss of necessary resources for survival but also sacred cultural practices. [3] Treaties between the U.S. government and indigenous groups are intended to guarantee continued tribal access to species as their habitats continue to change, however,  these treaties are often not honored by the U.S. government.[4]

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Road salt, seemingly innocuous, is a silent destroyer of aquatic ecosystems, wildlife, groundwater resources, and transportation infrastructure.[1] It takes just one teaspoon of road salt, which is made of sodium chloride, to pollute five gallons of water.[2]

Road salt is applied to roads, parking lots, and sidewalks to aid in dissolving snow and melting ice for transportation convenience and safety. When snow melts, road salt washes away with it—into storm drains, through stormwater collection system, and ultimately into our waterbodies.[3]

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Confirming the fears of environmental groups, on March 19 U.S. Bankruptcy Judge Benjamin A. Kahn approved the abandonment of cleanup obligations in thirty-three Kentucky coal mines previously owned by coal company Blackjewel LLC.[1] Approximately 170 other Blackjewel facilities in Kentucky, Tennessee, West Virginia, and Virginia will fall into a legal gray area as the company attempts to sell the mines to other coal companies.[2] Cleanup obligations for any permits not sold or transferred within six months will be abandoned.[3]

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Christopher D. Stone developed the concept of giving an environmental entity legal personhood.[4] Stone’s work was later recognized by Justice William Douglas in his dissent in the 1972 U.S. Supreme Court case of Sierra Club v. Morton.[5] Douglas argued for different environmental media to have a locus standi (e.g., the right to bring an action before the court of law) for their own protection and preservation.[6]

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