The Biden administration has made reducing PFAS a cornerstone of its environmental policy, and to that end, on June 15, the Environmental Protection Agency announced new, lower health advisory levels for four PFAS chemicals under its Safe Drinking Water Act authority ( SDWA). Health advisory levels are non-regulatory and unenforceable, and in the case of PFOA and PFOS, are temporary in nature, but levels of PFAS above these thresholds are now considered potentially harmful to human health and can be used in the development of drinking water regulations, they show influence state and local regulations and will certainly shape the public debate surrounding the safety of these chemicals.
In conjunction with the new health advisory levels, the EPA added five new PFAS chemicals to the list of chemicals it monitors and reports. The EPA also announced the availability of $1 billion in grants to fund PFAS remediation, including water quality testing, water treatment technology, training and general technical assistance. The $1 billion is part of a $10 billion package to address PFAS in drinking water and wastewater discharges included in the landmark federal Infrastructure Investment and Jobs Act.
The four chemicals in question for which the EPA has issued lower health advisory levels are PFOA, PFOS, PFBS, and the so-called GenX chemicals (HFPO-DA and its ammonium salt). The new interim and final health advisory levels for these PFAS chemicals are as follows:
PFOA—0.004 parts per trillion (PPT) or four parts per quadrillion (ppq) – intermediate
PFOS—0.02 PPT or 20 PPQ – intermediate
GenX Chemicals—2000 PPT—Final.
These levels are significantly more stringent than those adopted in 2016 for PFOA and PFOS, which established an individual and combined health advisory level of 70 PPT. As for GenX Chemicals, or PFBS, the EPA has not established a health advisory level before June 15, 2022. While there are many problems with the EPA’s recent announcement, one that simply cannot be ignored is that the interim health advisory levels for PFOS and PFOA are just below any available laboratory detection limit. And to put the levels into some perspective, one part per quadrillion is equivalent to one second of time for approximately 31.7 million years. It should also be noted that the interim recommendation levels are based on new toxicity data and draft analyzes that remain under review by the Agency’s Scientific Advisory Board.
As for the five PFAS chemicals—PFOS, PFOA, PFNA, PFHxS, and GenX Chemicals—that have been added to EPA’s table of regional screening levels, these chemicals join PFBS as PFASs monitored under this program. Although this monitoring program has no federal regulatory authority, many states also rely on this data for decision-making purposes.
These new health advisory levels create implications for industries that have produced or used these chemicals at any time. Among other things, these levels will affect public perception of these chemicals, as well as affect government regulation of them. Both should be expected to lead to increased government enforcement and regulation as well as private litigation.
The next major step for PFAS regulation appears to be the EPA’s announcement of new National Primary Drinking Water Regulations (NPDWR). These regulations will likely be announced this fall and will take effect in the third quarter of 2023. The recent announcement of new health advisory levels is part of the NPDWR development process.
Copyright © 2022 Womble Bond Dickinson (US) LLP All rights reserved.National Law Review, Volume XII, Number 188