Absence of Congressional or U.S. EPA Actions Limiting PFAS Exposure Likely to Engender State Regulation

Read the full article by Jeffrey Karp [co-authors: Edward Mahaffrey & Grahm Ansell] (JD Supra)

“Despite extensive negotiation, insufficient bipartisan support was garnered to obtain inclusion of robust PFAS provisions in Congressional year-end spending legislation. Initially, there was some expectation that U.S. EPA might be directed in the National Defense Authorization Act (NDAA) to establish maximum contaminant levels (MCLs) for per- and polyfluoroalkyl substances (PFAS) in drinking water, and/or to designate PFAS as hazardous substances under CERCLA, but those proposals were not included in the legislation. In the absence of a Congressional mandate or U.S. EPA regulatory action establishing enforceable clean-up standards, states concerned about the potential negative health effects of exposure to PFAS compounds have taken matters into their own hands. As discussed, to fill the federal government void, states have set MCLs for certain PFAS compounds in drinking water, required testing of water systems and publication of results, and established remediation requirements for certain PFAS compounds in groundwater and surface water.

Health Risk Data

The findings of the C8 Science Panel[1], which evaluated the results of the largest scale epidemiological studies performed in the United States during the period 2005-2013, set the stage for findings of a “probable link” between exposure to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) and increased risk of adverse health outcomes grouped into six disease categories: increased cholesterol levels, ulcerative colitis, liver and thyroid disease, testicular and kidney cancer, and pregnancy induced hypertension.[2] Moreover, U.S. EPA has stated, “Due to their widespread use and persistence in the environment, most people in the United States have been exposed to PFAS. There is evidence that continued exposure above specific levels to certain PFAS may lead to adverse health effects.”[3]

Nevertheless, the scientific consensus linking PFAS exposure to serious health impacts still is evolving as new studies involving humans, laboratory animals, and cell cultures (in vitro bioassays) continue to shed light on fundamental questions that guide risk assessment and regulatory developments, such as: Which health effects are most critical (i.e., likely to occur at environmentally relevant doses)? What exposure levels are protective of those critical health effects? And, which PFAS chemicals are regulatory priorities because they may account for the majority of the risk? In addition to U.S. EPA’s Lifetime Drinking Water Health Advisories (LHAs) for PFOA and PFOS,[4] recent comprehensive summaries of the state of the science on PFAS toxicology and epidemiology, conducted by lead regulatory agencies in the U.S. (e.g., ATSDR[5]) and internationally (e.g., Australia and New Zealand[6], [7],[8], [9] Canada[10], ESFA[11], the Netherlands[12]), may provide guidance for future PFAS risk management planning.

State Developments

As of November 30, 2019, 28 states have developed or adopted standards and guidance values for PFAS in drinking water, groundwater, and/or surface water.[13] Initially, 15 states adopted 70 parts per trillion (ppt) for PFOA and PFOS combined (for drinking water and/or groundwater),[14] thus matching U.S. EPA’s 2016 LHAs,[15] and six states have adopted more stringent values.[16] While PFOA and PFOS remain the primary focus of attention for regulatory agencies, 12 states have included additional PFAS chemicals found on U.S. EPA’s target analyte list for PFAS in drinking water, which is likely to expand to include as many as 29 PFAS chemicals in 2020.[17]

A fundamental challenge with addressing emerging contaminants such as PFAS is that regulations are dynamic, reflecting the interplay between scientific uncertainties, public awareness, regulatory agency priorities, and court decisions. At the federal level, both the U.S. EPA and ATSDR have reached differing conclusions in the past decade on the toxicity of PFOA and PFOS, and health-protective measures. Likewise, several states, including California, Massachusetts, New Jersey, and Texas, have made mid-course corrections on drinking water and groundwater standards for PFAS to keep pace with scientific, political, and legal developments.

Highlights of recent state efforts to develop regulatory responses to PFAS in drinking water and other media are presented below for California, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York and Wisconsin…

Conclusion

Congress failed in the 2020 appropriations legislation to direct U.S. EPA to set standards for PFAS in drinking water systems or include PFAS compounds as hazardous substances under CERCLA. Nor has U.S. EPA independently acted to set such drinking water standards on a national level or designate PFAS compounds under CERCLA, although a proposed rule that would designate PFAS as CERCLA hazardous substances remains under policy review by U.S. EPA’s senior management.[62] Instead, the agency has moved cautiously and deliberately to effectuate its PFAS Action Plan.[63] It has focused on collecting data to help inform any future regulatory action the agency eventually may take to establish PFAS drinking water standards or groundwater cleanup requirements.

In the meantime, U.S. EPA has stood behind its 2016 LHAs of 70 ppt for PFOA and PFOS in drinking water systems, recommending that water utilities take appropriate steps to protect their customers from ingesting higher concentrations of those PFAS compounds. More recently, U.S. EPA again has endorsed 70 ppt as an appropriate health-based value, using that concentration as its recommended cleanup parameter for PFOA or PFOS in groundwater that is a current or potential source of drinking water.[64]

In the absence of broad-based Congressional action or definitive steps taken by U.S EPA to fill the federal PFAS regulatory void, states essentially have been left to their own devices to propose and promulgate standards limiting exposure to PFAS in a variety of environmental media and consumer products. This situation has created an uncertain regulatory environment characterized by some states seeking to establish their own PFAS drinking water standards, monitoring and reporting duties, and groundwater remediation requirements, while others continue to apply U.S. EPA’s LHAs for PFOA and PFOS. Given the scientific uncertainties and policy disagreements among stakeholders, a consensus on how best to regulate PFAS compounds to adequately protect the public from potential negative health impacts is unlikely to occur any time soon.”