Read the full article by Shelby Dyl & Reza Zarghamee (JD Supra)

“The proposal marks another instance of EPA follow-through on its 2019 PFAS Action Plan.

TAKEAWAYS

  • The SDWA requires EPA to make regulatory determinations every five years based on whether chemicals in public water systems pose a threat to public health.
  • A regulatory determination is the first step in establishment of a maximum contaminant level for PFOA and PFOS, which would impose requirements on water utilities and owners and operators of public water systems.
  • The maximum contaminant level would also influence groundwater cleanup standard at sites contaminated with PFOA and PFOS.

On February 20, 2020, the U.S. Environmental Protection Agency (EPA or the Agency) took another step toward tightening its regulation of a wide range of several thousand synthetic chemicals known as perfluoroalkyl substances (PFAS) by issuing a pre-publication notice of a proposed regulatory determination to develop drinking water standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). PFOA and PFOS are among the two most-studied PFAS chemicals, and although they have been largely phased out in the United States, they remain a focus of regulatory attention due to their persistent, bioaccumulative and toxic properties, which also are shared by other PFAS. PFAS, as a whole, have come under increasing regulatory scrutiny due to recent high-profile litigation involving companies such as 3M and Wolverine Worldwide.

Given that it may still take several years to finalize the MCL, EPA has stated that the proposed determination represents ‘the beginning of the Agency’s regulatory development process, not the end.’ Nevertheless, it marks just the second time that EPA has determined that pollutants meet the Safe Drinking Water Act, 42 U.S.C. 300f, et seq. (SDWA) criteria for setting such standards since the SDWA was substantially amended in 1996 to require the consideration of detailed risk and cost assessments, and best available peer-reviewed science, when developing Maximum Contaminant Levels (MCLs). In this connection, the proposal marks another instance of EPA follow-through on a critical aspect of its February 2019 PFAS Action Plan, as well as a response to increasing pressure from lawmakers, states, and others to protect the nation’s drinking water supply from PFAS.

Significance of EPA’s Regulatory Action

The SDWA requires EPA to make regulatory determinations every five years for at least five unregulated contaminants. EPA’s action signifies the Agency’s preliminary determination that PFOA and PFOS:

  • Have an adverse effect on human health;
  • Occur in public water systems with a frequency and at levels of public health concern; and
  • Must be regulated to reduce health risks for persons served by public water systems.

Besides soliciting data and public feedback relevant to these criteria in the case of PFOA and PFOS, EPA’s notice outlines three potential pathways for regulating additional PFAS:

  • Evaluating each additional PFAS on an individual basis;
  • Evaluating additional PFAS based on different grouping approaches (e.g., physiochemical properties); or
  • Evaluating additional PFAS based on drinking water treatment techniques, as they develop.

Although the proposed regulatory determination does not directly address this issue, indications from EPA over the course of the last several months indicate that the Agency is not backing off of its health risk advisory level of 70 ppt for PFOA and PFOS, despite criticism from industry that this standard is overly aggressive.[1] EPA established this level in 2016, and upheld it in both its 2019 PFAS Action Plan and December 2019 Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS. In the December 2019 Interim Recommendations, EPA also recommended a screening level of 40 ppt to determine if PFOA and/or PFOS is present at a site at levels that warrant further investigation…”