Breaking Down the EPA’s Long-Anticipated PFAS Regulation

Breaking Down the EPA’s Long-Anticipated PFAS Regulation

The Environmental Protection Agency (EPA) recently proposed first-ever limits for PFAS compounds in drinking water. If adopted, the EPA’s new rule would require public water systems to test for and maintain PFOA and PFOS levels of no more than 4 parts per trillion and notify customers if levels exceed this standard.

Under the proposed PFAS National Primary Drinking Water Regulation Rulemaking, states with less stringent PFAS drinking water standards must enact new regulations to comport with the new standard. The EPA also indicated that additional PFAS compounds will be similarly regulated in the future.

Evolving PFAS Regulation

Polyfluoroalkyl substances (PFAS) are known as “forever chemicals” because it takes so long for them to break down in the environmental and the human body. People can be exposed to PFAS through a variety of ways, including certain consumer products, occupational contact, and/or by consuming food and drinking water that contain PFAS. The chemicals have been linked to a number of health conditions, including cancer and low birth weight.

As discussed in greater detail in a prior article, U.S. manufacturers have largely stopped using PFAS in favor of shorter-chain replacements, which are generally less bioaccumulative and potentially less toxic. However, prior discharges have resulted in very high levels of the chemicals in many public and private water systems, including those in New Jersey. According to EWG, more than 200 million Americans may be drinking contaminated water.  

Because of their potential harmful effects, regulation of PFAS has increased in recent years, particularly in states like New Jersey. In 2018, the New Jersey Department of Environmental Protection (NJDEP) was the first in the country to establish an MCL  (Maximum Contaminant Level) for perfluorononanoic acid (PFNA). In 2020, the NJDEP adopted new drinking water standards that set strict limits on perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). The MCLs are 14 parts per trillion for PFOA and 13 parts per trillion for PFOS. 

An MCL is the highest allowable concentration of a contaminant in water delivered to a user of a public drinking water supply. MCLs apply to public water systems, including public community and public non-transient noncommunity water systems. Public community and public non-transient noncommunity water systems are required to routinely monitor for contaminants for which MCLs have been established and to take any action necessary to bring the water into compliance with an MCL.

EPA’s Proposed PFAS Rule

The EPA, which has faced criticism for not acting quickly enough to regulate PFAS, is slowly taking action. In June 2022, the EPA issued health advisories warning that PFAS are much more hazardous to human health than scientists initially believed and are likely more harmful even at levels thousands of times lower than previously believed.

On March 14, 2023, the EPA announced a proposed National Primary Drinking Water Regulation (NPDWR) for six PFAS including perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), perfluorohexane sulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS). Under the proposed rulemaking, PFOA and PFOS would be regulated as individual contaminants, with proposed MCLs of 4.0 parts per trillion. 

The EPA is proposing to regulate PFHxS, PFNA, PFBS, and HFPO-DA (commonly referred to as GenX Chemicals) as a mixture using a hazard index approach. To determine the Hazard Index for these four PFAS, water systems would monitor and compare the amount of each PFAS in drinking water to its associated Health Based Water Concentration (HBWC), which is the level below which no health effects are expected for that PFAS. Water systems would add the comparison values for each PFAS contained within the mixture. If the value is greater than 1.0, it would be an exceedance of the proposed Hazard Index MCL for PFHxS, GenX Chemicals, PFNA, and PFBS.

If finalized, the proposed regulation will require public water systems to notify the public if monitoring detects these PFAS at levels that exceed the proposed regulatory standards. Additionally, public water systems would be required take actions to reduce the levels of these PFAS in drinking water if they exceed the proposed regulatory standards. This could include removing these chemicals through various types of treatment or switching to an alternative water supply that meets the standard.

What’s Next?

The EPA’s proposal does not require any actions for drinking water systems until the rule takes effect. According to the agency, it plans to finalize the regulation by the end of 2023.

Public comments will be accepted following publication of the proposal in the Federal Register. Additionally, the EPA will conduct a virtual public hearing on May 4, 2023, where members of the public can register to attend and provide verbal comments to EPA on the rule proposal. In addition to establishing drinking water standards, state and federal regulators have also prioritized the remediation of PFAS contamination. For compliance assistance in this rapidly developing area, we encourage entities to contact a member of the Scarinci Hollenbeck Environmental Law Group.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.