Read the full article by Melissa Byroade, Fabio Dworschak, & William Jackson (JD SUPRA)
“Per- and polyfluoroalkyl substances (PFAS) are a group of man-made chemicals that contain nearly 5,000 different compounds. PFAS are ubiquitous and can be found in a variety of everyday products, including stain- and water-resistant fabrics and carpeting, cleaning products, cookware, paints, and fire-fighting foams. The Environmental Protection Agency (EPA) warns that exposure to at least some PFAS ‘can lead to adverse health outcomes in humans.’
Federal PFAS Actions
While PFAS remain largely unregulated at the federal level, the federal government has taken steps to develop guidelines to protect human health from PFAS contamination. In 2009, the EPA issued provisional health advisories for two PFAS: perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). Provisional health advisories ‘are developed to provide information in response to an urgent or rapidly developing situation’ and ‘reflect reasonable, health-based hazard concentrations above which action should be taken to reduce exposure to unregulated contaminants in drinking water.’ The nonbinding advisories set the limit for PFOA at 400 parts per trillion (ppt) and PFOS at 200 ppt.
From 2013 to 2015, the EPA conducted, pursuant to its Third Unregulated Contaminant Monitoring Rule (UCMR3), large-scale sampling of six PFAS compounds: PFOA, PFOS, perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), perfluoroheptanoic acid (PFHpA), and perfluorobutanesulfonic acid (PFBS). This sampling and monitoring was intended to be the ‘basis for future regulatory actions to protect public health.’ Based on the 2009 provisional health advisories, the level of contamination appeared low. That quickly changed, however, when the EPA revised its drinking-water advisories.
In 2016, EPA revised its exposure guidelines for PFOA and PFOS by issuing new drinking-water health advisories to 70 ppt, for either chemical individually or combined. This remains the nonbinding standard for PFAS at the federal government level. Health advisories “provide information on contaminants that can cause human health effects and are known or anticipated to occur in drinking water.’  At 70 ppt, individually and combined, the EPA explained, the advisories ‘offers a margin of protection for all Americans throughout their life from adverse health effects resulting from exposure to PFOA and PFOS in drinking water.’ Drinking water in 21 states, two US territories, and one tribal community tested above the 70 ppt limit.
In June 2018, the Agency for Toxic Substances and Disease Registry (ATSDR) of the Department of Health and Human Services released a draft Toxicological Profile for Perfluoroalkyls. The ATSDR set minimal risk level in drinking water for four PFAS: (1) PFOA at 78 ppt (adult) and 21 ppt (child); (2) PFOS at 52 ppt (adult) and 14 ppt (child); (3) PFHxS at 517 ppt (adult) and 140 ppt (child); and (4) PFNA at 78 ppt (adult) and 21 ppt (child). Exposure below these levels, the ATSDR explained, ‘is not expected to result in adverse health effects.’ Like the EPA health advisories, these risk levels are nonbinding.
- Initiating steps to evaluate the need for a maximum contaminant level for PFOA and PFOS;
- Beginning the necessary steps to propose designating PFOA and PFOS as hazardous substances;
- Developing groundwater cleanup recommendations for PFOA and PFOS;
- Promulgating significant new use rules (“SNUR”) that require EPA notification before chemicals are used in new ways that may create human health and ecological concerns; and
- Using enforcement actions to help manage PFAS risk.
On December 4, 2019, EPA published an Advanced Notice of Proposed Rulemaking requesting comments on whether EPA should list 600 PFAS currently active in U.S. commerce, or any other PFAS, on the Toxics Release Inventory (‘TRI’) required under the Emergency Planning and Community Right-to-Know Act (“EPCRA”). A few days later, on December 20, 2019, Congress stepped in and amended EPCRA to add certain individual PFAS chemicals to the TRI program. These include the PFAS commonly known as PFOA, PFOS, GenX, PFNA, and PFHxS.
On December 19, 2019, the EPA issued its Interim Recommendations to Address Groundwater Contaminated with PFOA and PFOS. This nonbinding guidance provides screening levels and preliminary goals that allow the EPA to develop final cleanup levels for PFOA and/or PFOS contamination of groundwater that feeds into drinking-water supplies nationwide. The guidance recognizes that cleanup actions under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA) may ultimately result from the information collected and the final cleanup levels once they are set. The guidance recommends the following actions…”