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EPA says it's granting NC groups' PFAS petition, advocates call it 'offensive' and 'smoke and mirrors'

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Environmental advocates in North Carolina - and particularly in the Cape Fear region - had hoped the EPA would take tougher action against PFAS-manufacturer Chemours

The Environmental Protection Agency recently announced it’s overturning a Trump-era decision and granting a petition to require PFAS testing. Wilmington-area environmental groups say that’s misleading, arguing the EPA isn’t responding to their request at all.

Last fall, six state and local groups petitioned the EPA to force Chemours to provide testing on 54 types of PFAS, the family of chemicals that includes GenX. The Center for Environmental Health, Cape Fear River Watch, Clean Cape Fear, Democracy Green, the NC Black Alliance, and Toxic Free NC all cosigned the petition on October 13, 2020.

Under the Trump Administration, the EPA rejected the petition — a move that was frustrating but not shocking.

After the election, advocates had higher hopes for the EPA under the Biden Administration — in part because Biden’s appointee to run the EPA, Michael Regan, is the former head of the North Carolina Department of Environmental Quality. Those hopes appeared to be warranted when, this October, the Biden EPA agreed to reconsider the petition and shortly after announced a national testing strategy for PFAS.

Then, as the 90-day deadline to reconsider approached, the EPA announced it had granted the petition.

Except, according to many of the petitioners, it didn’t.

Petitioners call EPA move 'offensive,' and 'smoke and mirrors'

“I think it was offensive the way that the EPA responded to this, claiming that they granted the petition when in fact it was a denial of the petition," said Dana Sargent, of Cape Fear River Watch, one of the petitioning groups. She said the EPA’s announcement doesn’t actually include new efforts.

Another petitioning group, the Center for Environmental Health, accused the EPA of using a "smoke and mirrors strategy" that "failed to protect North Carolina communities and hold Chemours accountable" for its decades of PFAS pollution.

Emily Donovan, a longtime advocate and member of petitioning group Clean Cape Fear, said two major pieces in particular are missing. One is an epidemiological study of the residents in the Cape Fear region who have been exposed to PFAS for decades. The other is a "mixture study" which would look at the interactions of multiple PFAS, instead of treating each chemical as an isolated exposure risk.

"The most important thing to us is the epidemiological studies, because we've already been exposed. We have all of the data locked inside of us, we have the health effects, the things that are wrong with us, the struggles with reoccurring cancers that are getting diagnosed ... these are the things that we need to be studying right now," Donovan said.

Sargent said such a study could offer "profound" insights into PFAS, "we've got 40 years of pollution 40 years of contaminated residents with at least 300 different PFAS from [Chemours' Fayetteville Works facility]."

The mixture study, Sargent and Donovan agreed, was equally important. There are nearly 5,000 chemicals in the PFAS family — and treating, and regulating, each individual chemical separately could miss the potential compound risks. If even a fraction of the total number of PFAS — say, the 54 the petitioners are calling for studies on — were all present, each below a health safety level, the combined effect could be considerably over a toxic threshold. The science is still out on whether that's the case — but because many PFAS are chemically quite similar some scientists believe it's possible. Ultimately, only additional study can prove it, which is part of what the petitioners asked for (specifically, in animal testing on mice and rats).

EPA response

In response to an initial request for a response to criticisms from petitions, the EPA issued a statement:

After the previous Administration rejected this petition, we reversed that and granted the petitioners request to mandate further data gathering and testing on the risks posed by PFAS. The granting of this petition is part of this Administration’s broader efforts to holistically tackle the issue of emerging contaminants – from updating health assessments for chemicals like GenX, to stopping industrial releases through our Effluent Limit Guidelines, to finding more efficient category-based approaches to understand and respond to the risks. We look forward to continued engagement with all stakeholders to address the challenges of PFAS pollution in North Carolina and across the country.

Part of the difficulty the EPA — along with scientists around the world studying PFAS — is the staggering number of chemicals: multiply the time, effort, and funding to conduct a toxicity evaluation on a single chemical by hundreds, or thousands, and you get the idea.

Related: Here’s what it will take to get answers about GenX’s health effects (Port City Daily)

The EPA's solution is a categorical approach, testing individual chemicals that the agency believes can represent categories of dozens or hundreds of others. In its first phase, the EPA plans to test 24 PFAS chemicals, each representing a category. The agency says this testing will cover 30 of the 54 chemicals targeted by the petitioners — and that it believes nine more could be covered by subsequent testing. The remaining 15, the EPA says, could be covered by existing studies, but more analysis is needed.

Asked about the specific concerns of the petitioners, namely the question of PFAS mixtures, the EPA noted it "will address PFAS mixtures by using the toxicity of the individual substances to predict the toxicity of the mixture, an approach which is consistent with the current state-of-science on PFAS. EPA is proceeding with development and peer review of these methods as specifically applied to PFAS."

On the issue of epidemiological research, the EPA said it agreed with petitioners about the significance of data in the Cape Fear region. While the EPA will not force Chemours to conduct an epidemiological study, the agency says it is quote “contributing to and reviewing numerous existing ongoing human studies.”

As with other aspects of testing, the EPA hasn't ruled out additional steps. In an email, EPA press secretary Nick Conger wrote, "I’d point out that our statutory obligations under TSCA section 9(d) requires EPA to consult and cooperate with other Federal agencies 'for the purpose of achieving the maximum enforcement of [TSCA] while imposing the least burdens of duplicative requirements,' and EPA intends to consider the information developed through these efforts to determine whether it is appropriate to require the development of additional epidemiological information under TSCA."

What's next for petitioners?

Donovan and Sargent both argue that the EPA's approaches — category based testing and using predictive methods to tackle the question of PFAS mixtures — are not the only methods. They also argue that these methods hold Chemours less directly responsible.

Many of the petitioners pointed to Regan's own words, delivered in Raleigh on October 18, 2021, when the EPA announced its 'PFAS roadmap.' Regan made a point of promising he would address the PFAS issue “[n]ot with empty rhetoric, but with real solutions and with a pledge to hold polluters accountable.” For some, those words ring hollow now.

For its part, Chemours has seemed publicly amenable to the Biden EPA's approach. In a statement, Chemours it, "supports national, industry-wide PFAS-related regulatory and testing requirements that are data-driven and based on the best available science. In this regard, the EPA’s National PFAS Testing Strategy and participation of all manufacturers is important to a complete, holistic evaluation of PFAS compounds. As this work progresses, Chemours remains committed to partnering with all of our stakeholders and neighbors in North Carolina and delivering essential and responsible chemistry."

It's not clear where, exactly, petitioners will go next. According to the Center for Environmental Health, they are "considering all options, including litigation, to challenge EPA’s decision."