Posted on December 5, 2022 by John V. Byl
The intense focus on PFAS compounds in recent years, and particularly PFOA and PFOS, is undeniable. There have been several blog posts by ACOEL Fellow Seth Jaffe in recent months on some of the developments that have occurred. Notably, EPA issued revised interim lifetime health advisories for drinking water for PFOA and PFOS in June of this year that set standards of four parts per quadrillion for PFOA and twenty parts per quadrillion for PFOS. What happens next could have far reaching consequences.
EPA has announced that it intends to propose both Maximum Contaminant Levels (MCLs) as well as Maximum Contaminant Level Goals (MCLGs) for PFOA and PFOS by the end of this year. EPA has assured industry that any MCLs promulgated under the Safe Drinking Water Act (SDWA) will reflect feasibility of current detection methods and will account for costs, as required under the SDWA. Both will be very important.
In an FAQ document published by EPA in July, EPA indicated that the Minimum Reporting Level (MRL) is currently four parts per trillion for both PFOA and PFOS. Many laboratories, however, can detect PFOA and PFOS at concentrations below one part per trillion, so the MRL used to develop the proposed MCL will be critical. If the MCL that is adopted reflects a lower MRL, there could be significant problems for public water supply systems.
Public water supply systems are required to take measures to achieve MCLs for drinking water purposes. If MCLs are in fact adopted for PFOA and PFOS concentrations even close to the health advisories, many public water supply systems across the country will find it almost impossible to achieve the MCLs. Because PFOA and PFOS are so ubiquitous, it is common for public water supplies to have very low concentrations of one or both compounds. For example, in at least some of the Great Lakes, the concentration of PFOS is between one and two parts per trillion, and some of the Great Lakes are the source of drinking water for many municipalities. Because EPA will consider both MRLs (discussed above) and cost, one would hope that this will not cause an impossible scenario for public water supplies.
It should not go unnoticed that EPA has not adopted final MCLs for new compounds in nearly a decade. Without question, PFAS hype has caused many regulatory authorities at the state and federal level to move quickly to adopt drinking water criteria for these compounds. Based upon epidemiological studies, this makes sense. But are the decisions being made too hastily considering all the circumstances? The mere publication of the revised health advisories has already caused a stir among the public, despite EPA’s assurance that these are unenforceable guidelines. If EPA had followed its customary scientific protocol in developing these health advisories, then perhaps the public’s reaction is completely justified. Some scientists have suggested, however, that EPA did not follow its protocol in developing these health advisories. That atypical protocol seems intertwined with an atypical sense of fear and urgency, yet EPA acknowledges that the health advisories for PFOA and PFOS may change when final studies are completed—that is, “based on the best available science.”
EPA has developed MCLs and other action levels in the past that are considerably higher than health advisories and MCLGs. For example, lead (which has no MCL) has an EPA established Action Level of 15 parts per billion, even though the MCLG is zero, similar to PFOA and PFOS. Because of the consideration of cost and the practicalities of how lead comes to be located in drinking water from public water supplies, 15 parts per billion is the standard. If the proposed MCLs for PFOA and PFOS reflect similar considerations, so that achieving the MCLs is not unattainable for public water supplies, EPA’s actions will be consistent with past actions. We will know soon if that is the case.