On June 15, 2022, the U.S Environmental Protection Agency (EPA) announced new health advisories for four per- and polyfluoroalkyl substances (PFAS). The health advisories significantly lowered the level considered safe to consume for two PFAS and set limits for two new PFAS. At the same time, EPA announced it was making $1 billion available in grant funding to help communities address PFAS contamination.
PFAS have been dubbed “forever chemicals” because they tend to linger in the environment and humans rather than naturally breaking down. There are dozens of different types of chemicals that are included under the umbrella term PFAS. They have been used in manufacturing since roughly the 1940s for a variety of purposes including on nonstick cookware and flame-retardant equipment. PFAS have been linked to a variety of health problems including cancer.
New Health Advisories
Health advisories represent the maximum level the EPA considers safe for a person to consume during their lifetime. Although not binding on any government or person, EPA’s health advisories are often used to guide binding policymaking.
EPA set new health advisories for (PFOA) and perfluorooctane sulfonic acid (PFOS), two of the most common PFAS. Although PFOA and PFOS were voluntarily phased out by manufacturers, they remain in the environment. The Obama administration had previously set health advisories for both PFOA and PFOS at 70 parts per trillion (ppt). The Biden administration, citing new science and consideration of lifetime exposure, lowered the health advisory levels to 0.004 ppt for PFOA and 0.02 ppt for PFOS. EPA considers these levels “near zero” and admits they are “below EPA’s ability to detect at this time,” meaning the safe level of consumption for those two chemicals is practically zero.
EPA also set health advisories for the first time for perfluorobutane sulfonic acid and its potassium salt (PFBS) and for hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt (GenX chemicals). PFBS and GenX chemicals are among the chemicals that manufacturers switched to after phasing out the use of PFOA and PFOS. EPA set the health advisory limit for PFBS at 2,000 ppt and the limit for GenX chemicals at 10 ppt.
$1 Billion in Newly Available Funding
EPA simultaneously announced $1 billion in new grant funding to address PFAS contamination. The money is part of President Biden’s Bipartisan Infrastructure Law, which set aside $5 billion ($1 billion per year from 2022-2026) to address PFAS concerns. As laid out in its list of eligible projects, EPA is focusing these funds on projects that will assist small, disadvantage communities (such as testing and remediation) and/or more broadly applicable projects such as those focused on minimizing greenhouse gas emissions, streamlining state projects, and addressing the source of PFAS.
In order for states to be eligible for the funding, they must submit a letter of intent by August 15, 2022.
These steps by EPA are part of the Biden administration’s broader focus on addressing concerns over PFAS, largely embodied by its October 2021 PFAS Strategic Roadmap. As discussed in EPA’s announcement, one of the next steps in that roadmap is EPA’s issuance of a proposed PFAS National Drinking Water Regulation in fall 2022. While the new health advisory levels may not be binding, they are likely to impact that upcoming regulation. If EPA follows its health advisory level and sets the maximum allowable level of PFOA and PFOS below the current measurable level, the impacts would be felt throughout the country. It is a near guarantee such a level would be met by a variety of lawsuits. It is also highly likely that such levels would cause substantial problems for drinking water providers nationwide.
These health advisory levels are likely to influence states, such as California, that are looking to regulate at least as stringently as EPA. State agencies in California, including the State Water Resources Control Board and the Office of Environmental Health Hazard Assessment, have previously issued PFOA and PFOS regulations. The levels set by those agencies were lower than those issued by the Obama administration but are higher than the level just set by the Biden administration. It is certainly possible that this new regulation from the Biden administration will spur action at the state level in California and other states with similar views on environmental regulation.
EPA’s announcement is a significant step in the regulation of PFAS. It is likely even bigger steps will follow.
Alex Van Roekel is an associate in Nossaman’s Water Law Group. He provides counsel to clients on state and federal water law issues including water rights, groundwater management and public policy within the water sector. He also ...
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