As part of the EPA’s recent efforts to advance its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (PFAS Action Plan), the EPA announced on February 20 its preliminary determination to regulate perfluoroctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) in drinking water. Following review of the comments submitted by the June 10 deadline, EPA will make a final determination whether to regulate PFOA and PFOS under the Safe Drinking Water Act (SWDA). Meanwhile, many states continue to move ahead with issuing their own regulations governing PFAS.
The US Environmental Protection Agency (EPA) announced its preliminary determination on February 20 to regulate PFOS and PFOA in drinking water. EPA concurrently announced that it will not be regulating six other contaminants listed on the fourth contaminant candidate list (CCL), and that it will not make a preliminary determination regarding 1,4-dioxane at this time, which also remains on the fourth CCL with PFOS and PFOA.[1] In late April, the 60-day comment period for public comments on the initial regulatory determinations (including the exclusion of the six other contaminants from the rulemaking) was extended by EPA from May 11 to June 10. As of 11:59 pm on June 10, 364 comments were received by EPA.
EPA’s preliminary determination on PFOS and PFOA is part of the EPA’s recent efforts to advance its PFAS Action Plan, which was issued in February 2019. Through its PFAS Action Plan, EPA seeks to address PFAS contamination, prevent future contamination, and communicate with the public about these chemicals.
If EPA makes a final determination to regulate PFOS and PFOA after considering public comments, it will propose a national primary drinking water regulation (NPDWR) and maximum contaminant level goal (MCLG) for those contaminants within two years. The NPDWR is a legally enforceable standard applicable to public water systems, and would set a maximum contaminant level (MCL) or list a treatment technique for public water systems. After EPA makes its proposal, it must publish the final MCLG and NPDWR within 18 months. Public water systems and the public will continue to closely watch EPA’s regulatory efforts concerning PFOS and PFOA. The preliminary determination made on February 20 is the first step in EPA’s efforts to set limits for these specific PFAS.
Despite the implications of the coronavirus (COVID-19), EPA is still demonstrating efforts to press forward, although some think EPA is not moving swiftly enough. In the absence of swift action from EPA, many states have engaged in their own efforts to regulate PFAS. While the COVID-19 pandemic and its economic consequences have interrupted those efforts, recently a number of states have advanced legislation, and in some cases, even enacted new regulations that had been pending prior to the state shutdowns. For example:
Although EPA is demonstrating efforts to move forward with regulating PFAS, specifically PFOA and PFOS, regulations regarding MCLs may not be seen within the next year, as EPA Administrator Andrew Wheeler recently indicated to Congress. Because EPA is moving slowly, the Senate Environment and Public Works Committee reported out of committee a bill, the Drinking Water Infrastructure Act of 2020, that is now going to the Senate and would mandate that EPA set an MCL for specific PFAS. Specifically, EPA would need to establish an MCL for PFOA and PFOS within two years of the bill being passed. The bill also discusses funding regarding drinking water infrastructure. Moreover, Providing Financial Assistance to States for Testing and Treatment Act of 2020 is a bill that would give grant money to communities so that they can deal with groundwater and drinking water contamination from PFAS. The House also passed HR 535, which would mandate that EPA list PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) within one year, as well as create national drinking water regulations to test and monitor PFAS in the public water systems. The need for clean and safe water has become apparent in the wake of COVID-19, especially for personal hygiene reasons.
It has been over a year since EPA issued its Action Plan, and aside from making a preliminary determination on PFOS and PFOA under the SDWA, EPA has continued to pursue its Action Plan through other ways as well. For example, EPA has sought to expand its methods to test for PFAS in drinking water. In December 2019, EPA also issued Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS. And, on May 18, 2020, EPA announced it would be publishing a final rule incorporating a requirement of the National Defense Authorization Act (NDAA) into the Code of Federal Regulations, which added certain PFAS to the Toxic Release Inventory (TRI) and set a reporting threshold for those PFAS. The PFAS added to the TRI were effective on January 1, 2020, and reporting forms are to be received by EPA by July 1, 2021.
EPA also issued a supplemental proposal to its 2015 Significant New Use Rule (SNUR) that it claims bolsters regulations on products imported into the United States that contain long-chain PFAS, such as PFOA and certain related chemicals, in surface coatings. Congress, in the NDAA, has mandated that EPA finalize the rulemaking for the 2015 SNUR by June 22, 2020. Finally, EPA has continued with the regulatory process for designating PFOA and PFOS as hazardous substances under CERCLA. However, a final decision as to whether PFOS and PFOA will be hazardous substances under CERCLA has yet to be made.
EPA has demonstrated that it intends to continue to pursue its PFAS Action Plan through various ways, and these efforts are expected to continue in the upcoming months, although the pandemic has thrown a wrench in these efforts. To date, there are still no federal regulations that have set MCLs for PFAS. The comment deadline for EPA’s preliminary determination for PFOS and PFOA closed on June 10, and EPA is also up against a June 22 congressional deadline to finalize the rulemaking for the 2015 SNUR. Looking forward, the public can expect to see further efforts by the EPA to regulate PFAS under the SDWA and CERCLA, as well as other federal regulatory programs such as the Resource Conservation and Recovery Act (RCRA), and the Toxic Substances Control Act (TSCA). The shape these efforts will take in the wake of the pandemic, however, remains to be seen.
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[1] Under the Safe Drinking Water Act (SDWA), EPA must publish the CCL every five years, which lists substances not currently regulated, but that may be in the public water systems and require future regulation. EPA then issues preliminary determinations on whether it will regulate certain contaminants listed on the CCL, invites public comment, and makes a final regulatory determination. In order to make a determination to regulate a contaminant from the CCL in drinking water, EPA must conclude that: (1) the contaminant may have an adverse health impact; (2) the contaminant occurs or it is likely to occur in public water systems with a frequency and at levels that raise public health concerns; and (3) regulation of the contaminant will provide a meaningful opportunity to reduce the health risk for people using the public water system.