EPA Continues Effort to Address PFAS “Forever Chemicals,” Expands Drinking Water Regulation

On March 14, 2023, the EPA announced the proposed National Primary Drinking Water Regulation (NPDWR) for six per-and polyfluorinated substances (PFAS chemicals). This action includes the two most studied, PFOA and PFOS, and expands the rulemaking to include four others: PFNA, HFPO-DA (commonly known as GenX), PFHxS and PFBS. The EPA suggests it will finalize the proposed drinking water standard by the end of 2023.

The EPA is using authority under the Safe Drinking Water Act to set legally enforceable levels called maximum contaminant levels (MCLs) for six PFAS in drinking water. It is also proposing health-based, non-enforceable maximum contaminant level goals (MCLGs) for these six PFAS. When finalized, the rule would require public water systems to monitor for these PFAS, notify the public of the levels of these PFAS and reduce the levels of these PFAS in drinking water if they exceed the proposed standards.

Municipal water systems may struggle to implement these rules, as the levels proposed are so low that it will strain the capability of current testing technology. PFAS are ubiquitous, and treatment is likely to be the only way to accomplish a near complete removal of these chemicals from drinking water. The treatment options to remove PFAS are limited, and compliance costs will increase. The Association of State Drinking Water Administrators was quoted by the Associated Press as stating the proposal is “a step in the right direction,” but “significant rate increases will be required for most of the systems.” In a statement, the American Chemistry Council said, “PFOA and PFOS were phased out of production by our members more than eight years ago. We support restrictions on their use globally, and we support drinking water standards for PFOA and PFOS based on the best available science. However, we have serious concerns with the underlying science used to develop these proposed MCLs and have previously challenged the EPA based on the process used to develop that science.”

These issues will be examined further in the ensuing public comment period and through webinars the EPA is holding on March 16 and 29, in addition to a public hearing on May 4.

In March 2021, the EPA announced a final determination to regulate PFOA and PFOS in drinking water. Within that determination, it also indicated that it would evaluate additional PFAS for potential regulatory action.

What are PFAS?

A constellation of thousands of chemicals that have been in use since the 1940s, PFAS are commonly used to improve the resilience of materials. PFAS can be found in stain and water repellants used in a wide variety of consumer products, including carpets, outerwear, non-stick cooking equipment and various food packaging. PFAS are regularly used within many manufacturing facilities and in the production of traditional and renewable energy, medical devices and semiconductors.  The chemicals have unique firefighting protection qualities and are present at airports, military installations and other locations where high-hazard liquid fires are more likely to occur. In November, the EPA Office of Water presented to PFAS stakeholders, saying, “Current scientific research has shown links between oral exposure to studied PFAS chemicals and adverse health effects, including prenatal and postnatal development, cancer, liver effects, immune effects and other effects (e.g., cholesterol changes).”

What Other Regulations are Being Developed to Address PFAS?

The regulatory pathway began during the previous administration with EPA Administrator Michael Regan announcing an update to the agency’s PFAS Strategic Roadmap in October of 2021 that continues to guide the Biden Administration’s effort to “Research. Restrict. Remediate” PFAS. Concurrent to the ongoing effort to establish a drinking water standard, the EPA has proposed to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA, also known as Superfund). Action under the Resource Conservation and Recovery Act (RCRA) also remains a possibility. These actions will have a broad impact on businesses, as both laws have strict liability and notification requirements. CERCLA would give the EPA additional authorities to compel companies to undertake remediation at sites contaminated with the substances. Today, the Environmental Working Group released support for the proposed MCLs and stated, “As of June 2022, 2,858 locations in 50 states and two territories are known to be contaminated.” Their methodology does not isolate the six compounds considered under today’s action, but the sheer number of sites that could potentially be regulated under Superfund, complications associated with the ubiquity of the substances and accurately designating responsible parties will make for a challenging regulatory framework.

While the EPA continues its deliberate path to more regulation, some states have taken a variety of actions, ranging from banning food packaging that contain PFAS and restricting use of PFAS-containing firefighting foams to increasing testing and regulation of water. Likewise, federal legislators have filed a multitude of bills addressing various concerns with PFAS, including a bill that passed the House of Representatives last year that would have required the EPA to deem PFOA and PFOS hazardous under CERCLA and treat them as hazardous air pollutants. While broad federal legislative action remains unlikely this year, Congress has passed various smaller measures to address more specific issues, like first responder exposure to PFAS and its handling at military installations.

Bose Public Affairs Group is engaged in the evolving federal policymaking framework and is actively tracking developments in all 50 states.

Brandon Kirkham has more than two decades of public policy and government relations experience. Brandon helps clients in highly-regulated industries respond to federal legislative and regulatory challenges, advising clients and engaging Congress and the Administration on behalf of companies across economic sectors. He also has extensive experience in developing and managing PACs, trade association engagements, grassroots advocacy campaigns and coalitions.​

Bose Public Affairs Group is a fully integrated public affairs firm dedicated to successfully navigating clients through the many pathways of political, legislative, regulatory, communications and media environments.