In Short

The Situation: The U.S. Environmental Protection Agency ("EPA") preliminarily determined to begin the process for setting National Primary Drinking Water Regulations ("NPDWRs") for perfluorooctanoic acid ("PFOA") and perfluorooctanesulfonic acid ("PFOS") under the Safe Drinking Water Act ("SDWA").

The Result: The EPA is seeking comment on whether it has appropriately considered available data and whether there are any additional data it should consider in making a final regulatory determination.

Looking Ahead: Following the initial comment period, the EPA will evaluate the public comments, as well as any new or additional data, to determine whether to move forward with setting NPDWRs for PFOA and PFOS, which could take a substantial amount of time.

On February 20, 2020, the EPA preliminarily determined to begin the process for setting NPDWRs for PFOA and PFOS. Commonly referred to as "forever chemicals" because they are alleged not to break down naturally in the environment, PFOA and PFOS are common per- and polyfluoroalkyl substances ("PFAS"). PFAS are synthetic chemicals with a wide variety of commercial and industrial applications, including firefighting foams, greaseproof food wrapping, nonstick cookware, water-repellent fabrics, carpets, and textiles. According to the EPA, PFOA and PFOS have been detected in up to 98% of serum samples taken in biomonitoring studies that are representative of the U.S. general population. Although PFOA and PFOS have largely been voluntarily phased out of use in the United States, they may still be produced domestically or present in imported articles.

With this announced action, the EPA is seeking public comment on its preliminary "regulatory determinations" for PFOA and PFOS under the SDWA. The SDWA establishes a public participation process that guides the EPA's regulation of contaminants that may present a risk to public health. Under the SDWA, every five years, the EPA determines whether to regulate at least five contaminants from a list of contaminants that are not currently subject to EPA drinking water regulations, but are known or anticipated to occur in public water systems and may require regulation. The EPA's February 20 action is the first step in determining whether PFOA and PFOS should be regulated under the SDWA.

The EPA has preliminarily determined that: (i) PFOA and PFOS may have an adverse effect on the health of persons; (ii) PFOA and PFOS occur in public water systems with a frequency and at levels of public health concern; and (iii) the regulation of PFOA and PFOS presents a meaningful opportunity for health risk reduction for persons served by public water systems. At this stage, the EPA has requested public comment on whether it has appropriately considered available data and whether there are any additional data it should consider in making a final regulatory determination.

There are still several steps the EPA must take before PFOA and PFOS are federally regulated in a substantively meaningful way. Following the initial comment period, if the EPA makes a positive final regulatory determination to regulate, it must then propose a Maximum Contaminant Level Goal ("MCLG") or treatment technique and NPDWR within 24 months and promulgate final regulations within 18 months. As the EPA notes, the analyses associated with a regulatory determination process are distinct from the analyses needed to develop a NPDWR, and thus, even if the EPA issues a final regulatory determination, it could still find later that the contaminants do not meet the criteria for a NPDWR.

The EPA is also soliciting comments on approaches to regulating PFAS chemicals more broadly, including PFOA, PFOS, and other PFAS chemicals. Specifically, the EPA is seeking comment on three regulatory approaches: (i) continuing to evaluate PFAS on an individual basis; (ii) evaluating groups of PFAS collectively; and (iii) evaluating PFAS based on a drinking water treatment technology instead of a MCLG. The EPA does not anticipate that reliable and validated methods that accurately and precisely capture all PFAS or total PFAS (and not other fluorinated, non-PFAS compounds) will be available for a number of years, suggesting that MCLGs for PFOA and PFOS may not be feasible.

Three Key Takeaways

  1. The EPA has preliminary determined to regulate PFOA and PFOS and is seeking public comment on all aspects of its preliminary determination.
  2. It may still be a number of years before PFOA and PFOS are regulated by the EPA, assuming they still meet the criteria for regulation after further analysis as well as evaluation of comments by the EPA.
  3. The regulation of PFOA and PFOS under the SDWA could have wide-ranging impacts on entities that currently or have in the past produced, transported, or utilized PFAS, specifically PFOA and PFOS, in their products.