Legal Alert

EPA Dramatically Lowers PFAS Health Advisories for Drinking Water

by Brendan Collins and Erin Carter
June 16, 2022

Summary

The U.S. Environmental Protection Agency (EPA) on Wednesday released drinking water health advisories for four per- and polyfluoroalkyl substances – known as PFAS. Those included PFOA, PFOS, PFBS, and GenX.

The Upshot

  • The EPA’s 2022 interim health advisories for PFOA (0.02 ppt) and PFOS (0.004 ppt) are orders of magnitude lower than the 2016 health advisories or any state-level enforceable drinking water standards.
  • The new PFOA and PFOS interim health advisories come in advance of the EPA’s highly anticipated proposed Maximum Contaminant Level Goals to support the Safe Drinking Water Act National Primary Drinking Water Regulations for PFOA and PFOS. Those goals will be published later this year.
  • The severely reduced health advisories beg the question: Can laboratories detect PFOA at 0.02 ppt or PFOS at 0.004 ppt?

The Bottom Line

The interim PFOA and PFOS health advisories effectively mean that any PFOA or PFOS in drinking water will exceed the health advisories. Though Wednesday’s action imposes no regulatory obligations, it certainly will have implications nationwide. There are several states that have based their enforceable drinking water standards on the EPA’s 2016 health advisories for PFOA and PFOS. It is possible that those same states will adopt the 2022 health advisories for PFOA and PFOS.

The U.S. Environmental Protection Agency on Wednesday released drinking water health advisories for four per- and polyfluoroalkyl substances – known as PFAS. Those included PFOA, PFOS, PFBS, and GenX.

Health advisories are non-enforceable, non-regulatory drinking water standards for contaminants that are not subject to a National Primary Drinking Water Regulation (NPDWR) under the Safe Drinking Water Act. Health advisories identify levels of exposure that would be unlikely to cause adverse health effects over a given exposure period, based on the current scientific understanding of risk. The four PFAS advisories released Wednesday are based on exposures over a lifetime.

The EPA issued interim health advisories for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). The interim notices replace the EPA’s 2016 health advisories for PFOA and PFOS (70 parts per trillion or ppt).

The 2022 interim health advisories for PFOA (0.02 ppt) and PFOS (0.004 ppt) are orders of magnitude lower than the 2016 health advisories or any state-level enforceable drinking water standards. For example, New Jersey’s Maximum Contaminant Level for PFOA in drinking water is 14 ppt and 13 ppt for PFOS.

The PFOA and PFOS interim health advisories come in advance of the EPA’s highly anticipated proposed Maximum Contaminant Level Goals (MCLGs) to support the Safe Drinking Water Act NPDWR for PFOA and PFOS, which are expected to be published later this year. Note that MCLGs also are non-enforceable, but the EPA generally bases enforceable Maximum Contaminant Levels (MCLs) for drinking water on the MCLGs, when it is technically and economically feasible to achieve these low levels.

The EPA issued final health advisories for perfluorobutane sulfonic acid and its potassium salt (PFBS) at 2,000 ppt and for hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt (collectively GenX chemicals) at 10 ppt. The EPA had not previously issued health advisories for PFBS or GenX, and the EPA does not indicate that it will adopt MCLG or MCL for these compounds.

Though Wednesday’s action imposes no regulatory obligations, it will certainly have implications nationwide. Most immediately, there are several states that have based their enforceable drinking water standards on the EPA’s 2016 health advisories for PFOA and PFOS. It is possible that those same states will adopt the 2022 health advisories for PFOA and PFOS.

Further, the severely reduced health advisories beg the question: Can most laboratories detect PFOA at 0.02 ppt or PFOS at 0.004 ppt, and, are the levels set so low as to effectively mean that any detection at all would always be over the advisory limits?

The lack of specificity in reporting levels is further reflected in the EPA’s Technical Fact Sheet. According to the EPA, when health advisories are below the analytical method detection limit, as is the case for the interim PFOA and PFOS health advisories, any detectable level of PFOA or PFOS will result in a “hazard index” greater than 1 for the whole mixture.

Thus, the interim PFOA and PFOS health advisories effectively mean that any PFOA or PFOS in drinking water will exceed the health advisories.

Attorneys in Ballard Spahr’s Environment and Natural Resources Practice provide regulatory, transactional, and litigation support to clients in every corner of the market—helping clear the way for projects, address environmental challenges, maintain regulatory compliance, and navigate enforcement issues.

Our attorneys advise on regulatory compliance and enforcement matters arising under federal environmental statutes as well as state and local programs. We analyze and negotiate the environmental issues at play during transactions and project development. Please call us for more information.

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