The pesticide industry was also “a child of the Second World War,” biologist Rachel Carson wrote in her magnum opus “Silent Spring,” published 60 years ago last fall. Synthetic insecticides had “no counterparts in nature,” she observed, yet “we have allowed these chemicals to be used with little or no advance investigation of their effect” on ecosystems or ourselves. Like pesticides, PFAS shot from laboratory to market without thorough safety testing, endangering public health and wildlife.
Despite subsequent advances in environmental legislation over the intervening decades, the U.S. approach to chemical regulation remains largely unchanged. We are still subjected to what Carson aptly termed an “appalling deluge of chemical pollution.”
Catering to corporations
Writing in The New Yorker shortly after Carson’s death in 1964, E.B. White noted a “basic flaw in our regulatory machinery. American justice holds the accused person innocent until proved guilty; somehow this concept has crept over into industry, where it doesn’t belong, and has been applied to products of all kinds. Why should a poison dust or spray… enjoy immunity while there is any reason to suspect that it may endanger the public health or damage the natural scene?”
Congress had a chance to correct this fundamental injustice when it enacted the Toxic Substances Control Act (TSCA) of 1976, but it let corporate priorities prevail. The law instructed the U.S. Environmental Protection Agency to adopt those regulations “least burdensome” to industry, and it permitted continued use of roughly 60,000 chemicals (including the earliest ‘legacy’ PFAS) without review of their health risks.
An effort to strengthen TSCA in 2016 encountered strong industry pushback and accomplished only minimal reform, according to a recent ProPublica report. The workload of the agency’s chemical division grew markedly as it strove to undertake more chemical reviews, but its funding remained stagnant.
Greatly increasing the funding and staffing of EPA’s chemicals division would certainly improve chemical oversight, observed Kyla Bennett, an ecologist and lawyer who directs science policy for Public Employees for Environmental Responsibility (PEER), a nonprofit that supports whistleblowers and is pushing the EPA to protect consumers from PFAS in fluorinated plastic containers. “EPA doesn’t have the money, the bodies and the right expertise,” she said, nor does it have adequate time for evaluating new chemicals given a tight, statutory cutoff. The metric for success is “how many of these [approvals] they’ve gotten out in 90 days, not how well they’re protecting human health.”
“The whole system is broken,” Bennett added, due to corporate capture of the regulatory process — a dynamic she said persists under both Democratic and Republican administrations. Supervisors cycle from the agency to industry and back, and whistleblowers report that EPA managers change scientific conclusions, delete critical information and expedite approval of new chemicals to appease manufacturers.
Corporations are mandated to submit studies documenting safety risks, but in 2019 the agency stopped sharing those publicly and made the data difficult for their own staff to access, whistleblowers report. According to Bennett, even some safety data sheets — designed to inform workers and consumers of hazards—are now heavily redacted. Or, in place of where the form should appear in the database, there’s a blank page with a single word: “sanitized.”
A decade before the EPA was established, Carson had already observed the deference given to chemical manufacturers in what she called “an era dominated by industry, in which the right to make a dollar at whatever cost is seldom challenged.” Now, it appears that ‘right’ is almost never challenged: Among 3,835 new chemical applications submitted in the five years leading up to July 2021, journalist Sharon Lerner reported, EPA’s division of new chemicals did not decline a single one.
‘Regrettable substitutions’
Presented with clear evidence in 2001 that PFAS were endangering human health, the EPA negotiated a voluntary phaseout with some leading manufacturers for two PFAS compounds (among an estimated 4,700 in commercial use). In place of those ‘legacy’ compounds, the EPA permitted manufacturers to produce a second generation (“GenX”) of PFAS even though industry studies had demonstrated their health risks, Lerner revealed.
GenX is a classic case of a “regrettable substitution,” what Harvard University public health professor Joseph Allen defines as “the cynical replacement of one harmful chemical by another equally or more harmful in a never-ending game being played with our health.”
Industry always has the upper hand in this whack-a-mole “game” due to the sheer volume of new chemicals generated. The U.N. Environmental Programme reports that in 1965, a new chemical substance was registered on average every 2.5 minutes. Now, it’s every 1.4 seconds. The EPA is mandated to test 20 new chemicals a year but it’s failing to meet even that modest target.
The Precautionary Principle
Europe, in contrast, is moving away from the whack-a-mole approach to chemical management. According to the European Environmental Bureau, the European Commission plans to implement “a group approach to regulating chemicals, where the most harmful member of a chemical family defines legal restrictions for the whole family. That should end an industry practice of tweaking chemical formulations slightly to evade bans.”
For more than a decade, Europe has applied a common-sense restraint known as the Precautionary Principle in chemical regulations — requiring industries to assess risks and share data on hazards before substances go to market. Whereas in the U.S., chemicals are readily approved and only withdrawn when there is irrefutable evidence of human harm, often after decades of use.
While questions remain about the timeline and resources for implementing Europe’s new chemicals “Restrictions Roadmap,” the European Union has already banned about 2,000 chemicals since adopting a more precautionary approach. An additional 5,000 to 7,000 chemicals could be banned by 2030 under the new roadmap.
Paring back to essential uses and increasing transparency
Maine is pioneering a path that a growing number of scientists and policy specialists advocate — banning all PFAS except those deemed — in the language of LD 1503 — “essential for health, safety or the functioning of society and for which alternatives are not reasonably available” (such as critical medical devices).
A recent study found that alternatives exist for many consumer uses, but that options for industry substitutes are harder to assess—given a culture that keeps much production information proprietary. Far too often, companies use their right to confidential business information “as a cloak to keep things from the public and that’s wrong,” Bennett said.
3M, a leading manufacturer of PFAS, knew about the health risks of its formulations for half a century, evidence in lawsuits has revealed. Recently, the corporation announced plans to phase out PFAS manufacturing and use by 2025, but lack of transparency around how it defines and formulates these chemicals makes the outcome ambiguous. Its action comes in the face of mounting pressure from investors and tens of billions in anticipated litigation settlements as communities around the globe seek damages from chemical manufacturers for poisoned waters and health impacts that begin even before birth, resulting in “pre-polluted babies.”
Chemical corporations may not adopt greater transparency until forced to. But governments working to regulate and remediate PFAS can show the way. For the most part, Maine is making a good-faith effort to share information openly: posting data on sludge and septage sites to be tested, results from landfill leachate tests and public drinking water supply tests, updates on the status of the state’s well-testing, and recorded meetings of the PFAS Fund Advisory Committee.
The state could further improve information-sharing by hiring an ombudsperson to field residents’ questions and concerns, creating a more intuitive and readily linked web interface, and openly strategizing how to address the vast gap that remains between needs for PFAS water testing and treatment and agency capacities. Residents I interviewed in hard-hit areas voiced frustration over not having anyone to advocate for them within state government, feeling they were “put on the back burner” and might be left on their own without further help.
With Maine now mandating PFAS reporting from manufacturers, state agencies will need to resist the regulatory “corporate capture” evident at the federal level.
Open sharing on the part of government is essential on practical grounds — to expedite getting clean water to those still drinking PFAS, to facilitate a rapid transition to new product formulations, and to keep people informed about rapidly evolving science and policy.
More fundamentally, transparency can help to right a pernicious wrong. PFAS pollution represents a devastating betrayal of people who placed their faith in government to protect them and in corporations to consider the greater good. Choices made over decades in corporate board rooms, EPA offices and the halls of Congress violated that public trust.
“Who has decided — who has the right to decide — for the countless legions of people who were not consulted…,” Rachel Carson wrote about the indiscriminate use of toxic chemicals. In the case of PFAS, a small cadre chose the allure of big profits over the well-being of the world. If we hope to reverse those priorities in the years ahead, those who were “not consulted” will need to speak out.
