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EPA Closer to Regulating PFAS in Drinking Water (2)

Feb. 20, 2020, 11:50 PMUpdated: Feb. 21, 2020, 3:56 PM

The EPA has made an initial determination that it will eventually set legal limits for levels of two key PFAS chemicals in drinking water, the agency announced Thursday.

Under the Safe Drinking Water Act, the “preliminary regulatory determination” announced Thursday is the last step before the Environmental Protection Agency proposes limits on the releases of the two chemicals in drinking water and groundwater supplies. That announcement could still be months away.

The chemicals at issue are perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), two of many within the class of chemicals called PFAS, or per- and polyfluoroalkyl substances. Scientists have linked PFAS chemicals—common in nonstick coatings and firefighting foam—to health problems including higher cholesterol, birth defects, and cancer.

EPA’s announcement Thursday, if eventually finalized, would set maximum contaminant levels, or limits, in drinking water for the first time for PFAS chemicals that would apply to all water utilities across the country. The announcement comes as states have moved to regulate PFAS, many complaining of federal inaction.

“The Agency proposes the finding that regulation of PFOA and PFOS presents a meaningful opportunity for health risk reduction for infants, children, and adults, including pregnant and nursing women, served by public water systems,” the agency said in the notice.

The agency will accept comment for 60 days after its preliminary finding is published, and on its decision to consider regulation of other drinking water contaminants that fall under the same class of chemicals.

‘Avalanche’ of Pressure

“Aggressively addressing Per and Polyfluoroalkyl (PFAS) is an ongoing and high priority effort for EPA,” the agency said in a news release Thursday.

The EPA said its preliminary finding was based on scientific evidence that shows that PFOA and PFOS may have adverse effects. The data collected by the agency also shows the two chemicals “occur with a frequency and at levels of public health concern” in public water systems.

Centers for Disease Control and Prevention studies show PFOA and PFOS have been detected in 98% of blood serum samples representing the U.S. general population. But those levels have been declining since 1999, as companies manufacturing these chemicals, notably 3M Co., voluntarily began phasing out their use nearly two decades ago.

Steve Via, federal relations director for the American Water Works Association, said water utilities had already been expected the EPA’s announcement on the two chemicals.

But Melanie Benesh, a legislative attorney with the nonprofit Environmental Working Group, linked the agency’s preliminary decision to pressure from Congress and “an avalanche of public pressure and overwhelming science.”

“The Environmental Protection Agency has wasted decades deciding whether to regulate PFAS—and they could take many more years before a drinking water standard is finalized,” Benesh said Thursday. “It will be years—if ever—before a final drinking water standard for PFOA and PFOS is set.”

PFOA and PFOS have seeped into groundwater aquifers in many areas and are very difficult to remove. Congress has been pressing the EPA to lessen the public’s exposure to this family of chemicals.

Since early 2019, the EPA has been considering whether to set drinking water limits for PFAS, as part of an action plan that also includes new drinking water detection methods. The EPA set nonbinding health advisories of 70 part per trillion for these two chemicals, but some states have set drinking water limits that are at least five times lower.

The Association of State Drinking Administrators said they support the positive regulatory findings even though they are preliminary in nature.

Further Regulation

In addition to proposing to regulate PFOA and PFOS, the EPA is asking for data and information including new monitoring and health effects data to decide whether regulation is appropriate for other chemicals in the PFAS family.

The EPA had listed PFOA and PFOS along with six other chemicals on its fourth Contaminant Candidate List, which was released in November 2016. However, the agency said it’s also seeking comment on its decision against regulating six other toxic chemicals, which are: 1,1-dichloroethane, acetochlor, methyl bromide, metolachlor, nitrobenzene, and Royal Demolition eXplosive, (RDX).

The list includes contaminants that are currently not subject to any federal drinking water standards, but are known or anticipated to occur in public water systems.

3M Co. and DuPont originally developed and produced PFAS in the 1940s. Hundreds of companies, including Wolverine World Wide, Inc. and W. L. Gore & Associates, Inc., have used the chemicals made with the particular PFAS that 3M, DuPont, and Chemours, a DuPont spinoff, have produced to make thousands of products such as semiconductors, sticky notes, and shoes.

The original PFAS manufacturers, Chemours, and some other companies using the chemicals are the subject of several major PFAS-related lawsuits.

Ralph A. DeMeo, a Baker, Donelson, Bearman, Caldwell & Berkowitz PC lawyer, said EPA standards for PFAS are “sorely needed” while businesses, utilities, and local governments face a flood of PFAS-related litigation in the absence of federal regulation. DeMeo represents local governments and businesses in Florida facing potential PFAS liability.

“In the meantime, these private lawsuits are moving forward and there’s big verdicts and judgments and settlements, and there’s a lot of people on the line,” he said.

—With assistance from Ellen M. Gilmer.

(Updated Feb. 20 story with additional comments and detail in paragraphs 5, 8-11, and 21-22. A previous version of this story corrected reference to PFOS in 11th paragraph.)

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Rebecca Baker at rbaker@bloomberglaw.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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