Drinking water systems are preparing for the possibility that the EPA will try to codify its 2022 health advisories suggesting no amount of PFAS substances are safe, water attorneys say.
The Environmental Protection Agency is expected to issue its proposed PFAS drinking water standards by March 3, according to the EPA’s latest regulatory agenda. That date is exactly two years after the agency published its 2021 decision to regulate per- and polyfluoroalkyl substances, or PFAS, under the Safe Drinking Water Act.
The EPA, which did not respond to a request for comment, said in a news release this week that the draft of the proposed rule is undergoing interagency review, and the proposal will be released in the “coming weeks.” The agency said it expects to finalize the PFAS drinking water limits by the end of the year.
“Whatever they come up with will have a huge impact on the next several years for drinking water systems planning their budgeting,” and litigation will likely follow, said Tom Lee, a partner at Bryan Cave Leighton Paisner LLP in San Francisco.
The EPA in 2022 issued interim health advisories that said almost no levels of two PFAS substances in drinking water are safe. The question now is whether the agency’s proposed limits for PFAS in drinking water will reflect the non-binding advisory.
The advisory set safe PFAS levels “so low that most if not all public water systems can’t even detect it,” said John Kindschuh, an attorney at Bryan Cave Leighton Paisner in St. Louis who works with Lee on PFAS regulatory issues.
The interim advisory levels of 0.004 parts per trillion (ppt) for perfluorooctanoic acid (PFOA) and 0.02 ppt for perfluorooctanesulfonic acid (PFOS) dramatically tightened EPA’s 2016 advisory of 70 ppt for either compound or a combination of both.
The EPA is “telegraphing that that the maximum contaminant levels will be incredibly low values,” Lee said.
The EPA’s standards, to be proposed under the Safe Drinking Water Act, are not likely to be set at near-zero because the law requires the EPA to consider the economic impacts of new regulations as wells as other factors, said Melanie Benesh, vice president of the Environmental Working Group, which advocates for strict PFAS limits.
The EPA’s health advisories are based solely on health effects, and what the agency considers a safe lifetime exposure threshold, she said.
The chemical industry is pushing back against the health advisories because they question whether the limits are substantiated by the scientific evidence, said Jessie Rosell, counsel for Lathrop GPM LLP in Kansas City.
The industry is concerned about what scientific evidence is being considered, especially because the World Health Organization issued draft guidance in 2022 that would allow more PFOA and PFOS in drinking water than the EPA has recommended, she said.
The WHO recommended a limit of 100 ppt of either PFOA or PFOS in drinking water and a total cap of 500 ppt for combinations of up to 30 PFAS.
“From my reading, the WHO looked at the same basic data EPA looked at and reached different conclusions,” said Jeffrey Longsworth, a partner at Barnes & Thornburg LLP in Washington.
“I don’t think that has any legal impact on EPA, but it certainly fuels information for comments and for potential criticism of EPA and how they looked at things,” he said.
Longsworth is co-coordinator of the PFAS Regulatory Coalition, which is a group of oil, paper, auto and other companies, as well as municipalities and other entities that are affected by PFAS regulation but don’t manufacture the substances.
No Patchwork Solution
The industry is “begging for uniformity” in PFAS regulations amid a patchwork of state standards, Kindschuh said.
Twenty-two states had adopted their own widely-varying PFAS drinking water standards as of last June, with 28 states having none at all, according to Lee and Kindschuh’s August analysis of state standards. Since then, Wisconsin and Pennsylvania adopted PFAS standards.
Benesh said she worries the proposed EPA standards are being delayed after the agency had previously committed to releasing them by the end of of 2022.
The delay “gives us less time to comment on the rule,” she said. “It will take more time before the final regulations are in place.”
The EPA in 2022 also issued new, final advisories for hexafluoropropylene oxide dimer acid (HFPO-DA) and its ammonium salt—commonly referred to as “GenX chemicals” due to the technology used to produce it—and perfluorobutane sulfonic acid (PFBS).
The final heath advisories set lifetime exposure at 10 ppt for GenX chemicals and 2,000 ppt for PFBS. The analytical detection limit for all four chemicals is 4 ppt, according to the laboratory methods the agency developed.
To see the latest updates on state-level PFAS regulations and legislation, check out Bloomberg Law’s PFAS State Activity Tracker here.
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