US EPA to issue PFAS drinking water health advisories

On June 15, 2022, the United States EPA released its pre-publication notice announcing the latest drinking water health advisories for PFBS and GenX, as well as interim drinking water health advisories for PFOA and PFOS.1

Drinking water health advisories are issued pursuant to 42 USC § 300g-1(b)(1)(F), which allows the US EPA to issue health advisories for contaminants that are not subject to no national primary drinking water regulations.2 They are developed “to provide information on chemical and physical properties, occurrence and exposure, health effects, quantification of toxicological effects, other regulatory standards, analytical methods and test technology. treatment of contaminants in drinking water”.3 These health advisory levels are not regulations and are not considered legally binding standards.4 Here we discuss the recent US EPA announcement and consider how it could impact industries in the future.

Drinking Water Advisory Levels for GenX, PFBS, PFOA and PFOS

The recently announced advisory levels include the following:

  • Generation X final: 10 ppt

  • Final PFBS: 2,000 ppt

  • Provisional PFOA: 0.004 ppt

  • Provisional PFOS: 0.02 ppt

The PFOA and PFOS levels have been published as “interim” advisory levels because the Scientific Advisory Board is still reviewing US EPA analyzes for these chemicals.5 According to the US EPA pre-publication notice, these “updated interim health notices for PFOA and PFOS replace the 2016 EPA health notices for PFOA and PFOS,” which were previously 70 ppt.6 Thus, the interim advisory levels mark a drastically lower level than was finalized under the Obama administration just six years ago.

As expected, the announcement elicited various reactions. Leading national environmental groups such as the Sierra Club and the Natural Resources Defense Council applauded the US EPA’s announcement, but stakeholders raised major concerns about the development of these standards. Due to the dramatic decrease in advisory levels, the new advisory levels are likely to lead to increased questions and alarms from the public and media about the potential risks of PFAS. Additionally, entities have expressed concerns about anticipated compliance issues, as such low advisory levels could pave the way for the US EPA’s next move to develop national drinking water regulations. Drinking Water Safety Primer (SDWA) for PFOA and PFOS, especially as health advisory levels are currently below analytical detection limits.

National Primary Drinking Water Regulations for PFOA and PFOS

The US EPA will then move forward to develop maximum contaminant level objectives to support the SDWA’s National Primary Drinking Water Regulations for PFOA and PFOS. The US EPA decided to develop SDWA regulations for PFOA and PFOS in March 2021.seven Therefore, by regulation, SDWA regulations for these PFAS must be proposed within 24 months of such determination and the rule finalized within 18 months of proposal.8 According to its PFAS strategic roadmap, the US EPA intends to propose the regulations by fall 2022 and finalize the rules by fall 2023.9 Regulations will generally come into force three years after their promulgation, although this period can be extended for up to two additional years.ten

However, the maximum SDWA contaminant level could be set higher than the health advisory levels for these same compounds, as the US EPA must consider costs and benefits when setting maximum contaminant levels for new drinking water regulations. When developing maximum contaminant levels, the US EPA must “publish, seek public comment, and use” an analysis of “[q]quantifiable and non-quantifiable costs for which there is a factual basis in the regulatory dossier to conclude that these costs are likely to occur solely due to compliance with the maximum contaminant level”, as well as “the additional costs and benefits associated to each maximum alternative If the US EPA determines that the benefits of a maximum contaminant level would not justify the costs of compliance, it may “after notice and opportunity for comment, promulgate a maximum contaminant level for the contaminant that maximizes the benefits of reducing health risks”. at a cost justified by the benefits. 12 Therefore, after consideration of the costs, it is possible that the maximum levels of contaminants are not set as low as the concentration thresholds of the health advisories.

The US EPA has also previously indicated that it is actively considering the implications of its proposed rule to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) when planning for new drinking water regulations. In April 2022, the US EPA indicated that the agency would consider the costs associated with this designation when setting regulatory standards. The White House Office of Management and Budget has been reviewing the US EPA’s proposed rule to designate PFOA and PFOS as CERCLA hazardous substances since January 2022.

The US EPA fact sheet has identified measures that the US EPA has deemed appropriate to reduce PFAS, including closing contaminated wells or changing source water mixing rates, when the available supply is not affected, or the installation of technologies such as granular activated carbon, ion exchange or high pressure membranes.13

IIJA Grant Funding for Emerging Contaminants

The U.S. EPA also announced US$1 billion in Infrastructure Investment and Jobs Act (IIJA) funding under the Emerging Contaminants in Small or Disadvantaged Communities grant program, which can be used to reduce PFAS in drinking water.14 This is the first of US$5 billion. of the IIJA that will be used to control PFAS in the drinking water of small or disadvantaged communities. The US EPA plans to issue guidelines later this year detailing eligible uses of funding and the application process. This program will complement the US$3.4 billion for the State Revolving Fund for Drinking Water (SRF) and the US$3.2 billion for the SRF for Clean Water.


FOOTNOTES

1 Lifetime Drinking Water Health Advisories for Four Perfluoroalkyl Substances (PFAS), FRL 9855-01-OW (June 14, 2022), https://www.epa.gov/system/files/documents/2022-06/prepublication-four-pfas -june-2022.pdf.

2 Identifier. at 4 o’clock.

3 Identifier.

4 ID.; see also 42 USC § 300g-1(b)(1)(F).

5 Lifetime Drinking Water Health Advisory for Four Perfluoroalkyl Substances (PFAS), FRL 9855-01-OW, p. 4.

6 Identifier. at 1, 4.

seven Announcement of Final Regulatory Decisions for Contaminants on the Fourth Candidate List of Drinking Water Contaminants, 86 Fed. Reg. 12272, 12276 (March 3, 2021).

8 42 USC § 300g-1(b)(1)(E).

9 US EPA, PFAS Strategic Roadmap: US EPA’s Commitments to Action 2021-2024 (Oct. 2021), https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf.

ten 42 USC § 300g-1(b)(10).

11 42 USC § 300g-1(b)(3)(C).

12 Identifier. § 300g-1(b)(6)(A).

13 See US EPA, Drinking Water Health Advisories for PFAS: Fact Sheet for Public Water Systems, at 3, https://www.epa.gov/system/files/documents/2022-06/drinking-water-ha-pfas-factsheet -water-system.pdf (discussing PFAS risk reduction methods for public water systems).

14 US EPA, EPA Announces New Drinking Water Health Advisories for PFAS Chemicals, $1 Billion in Bipartisan Infrastructure Law Funding to Strengthen Health Protections (June 15, 2022), https://www.epa.gov/newsreleases/epa-announces-new-avis -of-health-drinking-water-pfas-chemicals-1-billionbipartisan

© Copyright 2022 Squire Patton Boggs (USA) LLPNational Law Review, Volume XII, Number 173

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