EPA Takes New Steps To Regulate PFAS

by James T. Price

The Environmental Protection Agency (EPA) recently announced new steps to address PFAS (per- and polyfluoroalkyl substances) in drinking water. These actions will collect new data on the presence of PFAS in drinking water and could lead the EPA to establish maximum contaminant levels, commonly known as MCLs, for these substances under the Safe Drinking Water Act (SDWA).

PFAS are materials commonly associated with firefighting foam, nonstick coatings, water repellants, and many consumer products. Until recently they were largely unregulated, but they have been gathering significant public and regulatory scrutiny in the past few years. On Feb. 22, 2021, the EPA reproposed the fifth Unregulated Contaminant Monitoring Rule (UCMR 5) to collect new data on PFAS in drinking water, and issued final regulatory determinations concerning perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) under the SDWA. Some of these actions will be subject to public comment and stakeholder meetings.

Proposed UCMR 5 will collect data on 29 PFAS constituents in drinking water systems between 2023 and 2025. EPA will accept public comment on this proposal for 60 days following publication in the Federal Register and will hold two virtual stakeholder meetings at dates to be announced.

With EPA’s final determinations regarding PFOA and PFOS under what is known as the SDWA Fourth Contaminant Candidate List, EPA will be implementing the National Primary Drinking Water Regulation process to these two chemicals. This process may lead to development of MCLs for these substances. There are currently no MCLs for PFAS chemicals. EPA has issued a health advisory guidance for PFAS, and several states have moved separately to address PFAS.

These developments will affect municipalities and drinking water systems, beginning with the datagathering requirements, when established. In time, they may affect manufacturers and others who use PFAS and similar chemicals in their processes and products. They may also affect those responsible to remediate legacy environmental sites, if PFAS standards developed for drinking water are translated into remediation requirements (to the extent applicable). These and other stakeholders will want to follow these regulatory actions as EPA moves forward.

Jim Price is a partner at Spencer Fane LLP in the firm's Kansas City office where he is chair of the firm's Environmental Law Practice Group. His practice concentrates on environmental regulation and compliance, environmental litigation, toxic torts, and business transactions involving environmental issues. He has served as lead counsel for numerous environmental matters, including Superfund proceedings, RCRA corrective action, environmental transactions, and environmental permitting and compliance for solid waste, hazardous waste, water, air and other matters.

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