Tag: Regulation

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.

___________________

[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.

BLM’s Wild Horse and Burro Program at a New Frontier

A decades-long effort to reform the federal program that manages free-roaming wild horses and burros throughout the West faces a new challenge in a recent lawsuit filed by the American Wild Horse Campaign (“AWHC”).

The Wild-Free Roaming Horses and Burros Act (“Act”) vests the Bureau of Land Management (“BLM”) with the responsibility to manage and protect wild horses and burros across nearly 27 million acres of public land in the West.[i] According to recent surveys, 100,000 wild horses and burros live on these lands,[ii] yet the BLM estimates that the area can only sustain about 27,000.[iii]

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Final Carbon Capture Regs Seeks to Boost Development, but Challenges Remain

Seeking to clarify the incentives available to developers of projects that capture carbon emissions during emission, the U.S. Treasury Department and the Internal Revenue Service (IRS) released final regulations for Section 45Q of the Internal Revenue Code in early January.[1]

Section 45Q incentivizes tax equity investors to invest in carbon capture and sequestration (“CCS”) by making financing easier through liberalization of several concepts and provisions.[2] Notwithstanding Section 45Q, though, various costs, inconsistent public support, and transportation and storage challenges remain barriers to implementing CCS.[3]

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Tongass National Forest

Trump Administration Moves to Open More Public Land to Industry in Tongass National Forest Proposal

The state of Alaska’s 2018 request to exempt Tongass National Forest from environmental protections has cleared a major step in its evaluation process.[1]  The U. S. Forest Service released a study indicating that loosening protections would not have significant impacts on Tongass, though environmental advocates are skeptical of its conclusions.[2] The Service’s Final Environmental Impact Statement considered several alternatives, but ultimately recommended a full exemption to the Roadless Rule for Tongass.[3]

Seeking Exemption to the Roadless Rule, a Clinton-Era Protection of National Forests  

National Forest System lands are protected by the 2001 Roadless Rule, which “establishes prohibitions on road construction, road reconstruction, and timber harvesting on 58.5 million acres” of public land.[4] After weighing national policy concerns against giving discretion to local decisionmakers, the final rule was adopted in 2001 with the intention of providing lasting protection.[5] It concluded that local exemptions to nationwide protections could have significant negative impacts on lands subject to roadless protections.[6] The rule therefore opted for complete protection of 58.5 million acres of “roadless” areas, comprising just two percent of the United States’ continental landmass.[7] Successive Alaskan administrations, however, have pushed for Roadless Rule exemptions, and the current proposal would open 9 million of Tongass’ 16 million acres to commercial activity.[8]

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California Governor’s Executive Order Pushes Phase-Out of Gas-Powered Cars by 2035

On September 23, California Governor Gavin Newsom issued an executive order (“Order”) directing that “all new cars and passenger trucks sold in California be zero-emission vehicles by 2035.”[1] The order’s public announcement emphasizes concern over smog and toxic diesel emissions and notes that half of California’s carbon pollution originates from the transportation sector.[2] The Order prioritizes deploying zero emissions technologies to “reduce both greenhouse gas emissions and toxic air pollutants that disproportionately burden our disadvantaged communities of color.”[3]

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Illinois Pollution Control Board holds hearing, receives public comment to finalize coal ash rule

On August 13 the Illinois Pollution Control Board (“IPCB”) held the first of two scheduled hearings on the Illinois Environmental Protection Agency’s (“IEPA”) proposed rule for mitigating and remediating coal ash ponds throughout the state.[1]

Coal combustion residual surface impoundments, known commonly as coal ash ponds, are repositories for the potentially harmful byproducts of coal-powered electric generation facilities.[2] Absent proper mitigation efforts, pollutants that collect in coal ash ponds can seep into and contaminate the surrounding groundwater.[3]

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[BLOG, Sept. 19, 2019] ENVIRONMENTAL DEREGULATORY LANDSCAPE IN 2019 By Jonathan Swisher

Environmental Deregulatory Landscape in 2019

President Trump believes that “an ever-growing maze of regulations, rules, restrictions [sic] has cost our country trillions and trillions of dollars, millions of jobs, countless American factories, and devastated many industries.”[1] He campaigned on the promise to eliminate the Environmental Protection Agency (“EPA”) “in almost every form,” leaving “only tidbits” intact.[2] According to the White House, “President Trump has reduced a historic number of burdensome and unnecessary regulations and stopped the massive growth of new regulations.”[3] The Administration’s environmental deregulatory agenda includes 85 rollbacks in air pollution and emissions standards, drilling and extracting, infrastructure and planning, wildlife protection, toxic substances and safety, and water pollution.[4] In the EPA’s FY 2020 Budget in Brief, the stated mission of the EPA is to “protect human health and the environment,” and according to the EPA, “we can all agree that we want a clean, healthy environment that supports a thriving economy.”[5] The report went on to say, “[e]nvironmental stewardship that supports a growing economy is essential to the American way of life and key to economic success and competitiveness.”[6]

The Administration’s most recent deregulatory success came with abandoning the Obama-era definition of what qualifies as “waters of the United States,” which provided enhanced protections for wetlands and smaller waterways. Under the new Rule, only wetlands “that are adjacent to a major body of water, or ones that are connected to a major waterway by surface water” will be federally protected.[7] The EPA gave four reasons for repealing the 2015 Clean Water Rule: (1) the Rule exceeded the agencies implementing authority based on Justice Kennedy’s significant nexus test in Rapanos;[8] (2) the Rule failed to adequately consider that it is the responsibility and right of the States to protect and “plan the development and use . . . of land and water resources’”; (3) to avoid future unconstitutional land encroachments by the federal government; and (4) the “distance-based limitations” suffer from “procedural errors” and lack “adequate record support.”[9] At a press hearing for the repeal, EPA Administrator, Andrew Wheeler, said that the EPA is “delivering on the president’s regulatory reform agenda,” and the agency is working on 45 more deregulatory actions.[10]

Critics of the Administration’s deregulatory agenda in the EPA have come just short of classifying it as “regulatory capture.”[11] Regulatory capture occurs when agency regulation departs from the public interest, and is directed towards the regulated industry. Although falling short of regulatory capture, critics believe the Administration’s actions show “an ambitious, intensifying movement to cripple the EPA’s capacity to confront polluting industries and promote public and environmental health.”[12] They further contend that the consequences of this deregulatory agenda “will likely fall hardest on vulnerable social groups, such as low-income communities, farmworkers, and first responders.”[13] On the other hand, proponents of the Administrations regulatory reform agenda are celebrating how the “Environmental Protection Agency managed to exceed its deregulatory goal” of removing two rules for every one they proposed.[14]

In addition to deregulation, the EPA has proposed to eliminate 41 current EPA programs and sub-programs while drastically cutting its budget in 2020. The EPA’s FY 2020 Budget in Brief requested $6.068 billion, which “represents a $2.76 billion, or 31 percent reduction from the Agency’s FY 2019 Annualized Continuing Resolution.”[15] The EPA contends that this budget is sufficient to support its “highest priorities” and fulfill its “critical mission for the American people.”[16] Among the programs to be cut are: Environmental Education, Pollution Prevention, Reducing Lead in Drinking Water, Regional Science and Technology and Water Quality Research and Support Grants.[17] While it is unlikely that the proposed budget cuts will be approved by Congress, the FY2020 Budget in Brief signifies a continued departure from the Obama-era expansion of the EPA.

With 85 environmental regulatory rollbacks, a proposed 31 percent reduction in funds, and the elimination of “funding for fourteen voluntary climate-related partnership programs,” President Trump is delivering on his campaign promise to eliminate the EPA “in almost every form.”[18] While the Administration continues to deliver on its promise, according to a 2019 Gallup Poll, “[b]y the widest margin since 2000, more Americans believe environmental protection should take precedence over economic growth when the two goals conflict.”[19] Currently, sixty-five percent of Americans, Republican and Democrat, believe that the environment should take priority over “a thriving economy.”[20]

While President Trump has not managed to eliminate the EPA “in every form,” he has managed to erode many of the environmental law principles which guided the agency for many years. Many States are pushing back against the Administration’s deregulatory agenda and countless lawsuits challenging their actions have been filed.

*Featured Image: 84 Environmental Rules Being Rolled Back Under Trump, The New York Times (Sept. 12, 2019).

[1] President Donald J. Trump’s Historic Deregulatory Actions are Benefiting American Families, Workers, and Businesses The White House, https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-historic-deregulatory-actions-are-benefiting-american-families-workers-and-businesses/ (last visited Sep 15, 2019).

[2] The Fox News GOP debate transcript, annotated The Washington Post, https://www.washingtonpost.com/news/the-fix/wp/2016/03/03/the-fox-news-gop-debate-transcript-annotated/ (last visited Sep 15, 2019).

[3] The Office of White House, supra, n. 1.

[4] Nadja Popovich, Livia Albeck-Ripka, and Kendra Pierre-Louis, 84 Environmental Rules Being Rolled Back Under Trump, The New York Times (Sept. 12, 2019), https://www.nytimes.com/interactive/2019/climate/trump-environment-rollbacks.html (last visited Sep 15, 2019) (A New York Times analysis, based on research from Harvard Law School and Columbia Law School).

[5] FY 2020 EPA Budget in Brief, p. 1 (March 2019), https://www.epa.gov/sites/production/files/2019-03/documents/fy-2020-epa-bib.pdf.

[6] Id.

[7] Bill Chappell, EPA Makes Rollback Of Clean Water Rules Official, Repealing 2015 Protections, NPR, https://www.npr.org/2019/09/12/760203456/epa-makes-rollback-of-clean-water-rules-official-repealing-2015-protections (last visited Sep 15, 2019).

[8] Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006).

[9] Definition of “Waters of the United States” – Recodification of Pre-Existing Rules (Pre-Publication Version) EPA (Sept. 12, 2019), https://www.epa.gov/wotus-rule/definition-waters-united-states-recodification-pre-existing-rules-pre-publication-version (last visited Sep 15, 2019) (quoting 33 U.S.C. 1251(b)).

[10] Id.

[11] Lindsey Dillon et al., the “EPA Under Siege” Writing Group, The Environmental Protection Agency in the Early Trump Administration: Prelude to Regulatory Capture, NCBI, S90 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5922212/pdf/AJPH.2018.304360.pdf.

[12] Id.

[13] Id.

[14]EPA exceeds 2-for-1 deregulation goal set by Trump administration, Federal News Network, (Sept. 3, 2019), https://federalnewsnetwork.com/federal-drive/2019/09/epa-exceeds-2-for-1-deregulation-goal-set-by-trump-administration/ (last visited Sept. 23, 2019).

[15] FY 2020, supra, n. 5 at 1-2.

[16] Id. at 2.

[17] Id. at 89-93.

[18] Id. at 94.

[19] Lydia Saad, Preference for Environment Over Economy Largest Since 2000, Gallup (April 4, 2019) https://news.gallup.com/poll/248243/preference-environment-economy-largest-2000.aspx (“Results for this Gallup poll are based on telephone interviews conducted March 1-10, 2019, with a random sample of 1,039 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia. For results based on the total sample of national adults, the margin of sampling error is ±4 percentage points at the 95% confidence level”) (last visited September 18, 2019).

[20] See FY2020, supra, n. 5.

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