The Biden Administration has made PFAS reduction a cornerstone of its environmental policy. With that goal in mind, on June 15th the Environmental Protection Agency announced new, lower interim lifetime Health Advisory Levels for two PFAS chemicals under its Safe Drinking Water Act (SDWA) authority, and first ever lifetime Health Advisory Levels for two additional PFAS. The Health Advisory Levels are non-regulatory and non-enforceable, and in the case of PFOA and PFOS interim in nature, and PFAS exposure above these newly prescribed thresholds will now be considered potentially harmful to human health. And, these levels will likely be used as guidelines for the development of drinking water regulations, influence state and local remediation screening and other regulatory levels, and they will certainly shape public debate around the safety of these chemicals for some time to come.
In conjunction with the new Health Advisory Levels, the EPA added five new PFAS chemicals to the list of reportsrisk based values that EPA uses to help determine if response or remediation activities are needed at contaminated sites. While regional screening level (RSL) and regional removal management levels (RMLs) are not cleanup standards, they are used by EPA and states to determine if investigation or action is required to protect human health and the environment at and around contaminated sites. Additionally, many states also rely on this data for decision-making purposes. The five PFAS chemicals added to the list of RSLs and RMLs include: hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA – sometimes referred to as GenX chemicals), perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorohexanesulfonic acid (PFHxS). These substances join PFBS or perfluorobutanesulfonic acid, which was the first placed on the lists in 2014.
The EPA also announced last month the availability of $1 billion for grants to fund PFAS remediation at contaminated sites, including water quality testing, water treatment technology, training and general technical assistance. The $1 billion earmarked for grant funding is part of a $10 billion package created by Congress to address PFAS in drinking water and wastewater discharges through its landmark federal Infrastructure Investment and Jobs Act.
As for the four chemicals for which EPA issued new lifetime Health Advisory Levels, the levels are materially lower than many expected:
- PFOA—0.004 parts per trillion (PPT) or four parts per quadrillion (ppq) - interim
- PFOS—0.02 PPT or 20 PPQ - interim
- PFBS—2,000 PPT – final
- GenX Chemicals—10 PPT – final.
These levels are significantly stricter than those enacted in 2016 for PFOA and PFOS, which levels were identified individually for PFOs and PFOA, and in combination, at 70 PPT. As for GenX Chemicals or PFBS, the EPA had not established a Health Advisory Level prior to June 15, 2022. While there are many issues with EPA’s recent announcement, one that simply can’t be ignored is that the interim Heath Advisory Levels for PFOS and PFOA are simply below any available laboratory detection limit. And, to put the levels somewhat in perspective, one part per quadrillion is equivalent to one second of time in approximately 31.7 million years. It also should be pointed out that the interim advisory levels are based upon new toxicity data and draft analyses that remain under review by the Agency’s Science Advisory Board.
The next significant step for PFAS regulation looks to be the EPA’s announcement of new National Primary Drinking Water Regulations (NPDWRs). These regulations likely will be announced this fall and take effect in Q3 2023. The recent announcement of new lifetime Health Advisory Levels is part of the NPDWR development process.
These new lifetime Health Advisory Levels pose implications for any industry that manufactured or used these chemicals at any time during the course of their operations. These levels will impact the public perception of these chemicals as well as influence state regulation of them. Both can be expected to lead to increases in governmental enforcement and regulation as well as private litigation.