The EPA has fed into the term “forever chemicals” because it has failed to set a federal standard –for more than 20 years. The Environmental Working Group (a non-profit, non-partisan organization dedicated to protecting human health and the environment) says the EPA’s determination to set drinking water limits is the first step in a long process for setting enforceable nationwide limits.“The EPA’s announcement that it will finally regulate PFOA and PFOS in drinking water is long overdue,” said Melanie Benesh, legislative attorney at the Environmental Working Group. “For decades, countless communities drank water with toxic levels of PFOA and PFOS without any recourse from the EPA or responsible polluters.”
The EPA also announced that between 2023 and 2025, most public utilities will be required to test their tap water for 29 PFAS chemicals, including the heavy metal lithium.
But why should communities have to wait that long? What is the EPA and public utilities doing for the next four years that overrides safe drinking water?
In May 2018 the EPA promised to designate PFOA and PFOS as hazardous substances under the federal Superfund law. But its recent “Advance Notice of proposed rulemaking” dated January 14, 2021, only went so far as to “get public comment” and merely gather more information about whether the agency should regulate PFOA and PFOS under our environmental cleanup laws.
In December 2019 Congress authorized the EPA to test for all measurable PFAS chemicals in addition to any other chemicals monitored under the Unregulated Contaminant Monitoring Rule. (Under the Safe Drinking Water Act, every five years the EPA orders testing for up to 30 unregulated contaminants.)
In a 76-page “pre-publication” notice (with referenced citations and some studies going back to 1981) the EPA announced “Final Regulatory Determinations for Contaminants on the Fourth Drinking Water Contaminant Candidate List”. To summarize, the EPA announced final regulatory determinations for eight of the 109 contaminants listed on the Fourth Contaminant Candidate List.
Specifically, the Agency is making final determinations to regulate perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) and to not regulate dichloroethane, acetochlor, methyl bromide (bromomethane), metolachlor, nitrobenzene, and RDX. A regulatory determination is a decision about whether or not to begin the process to propose and promulgate a national primary drinking water regulation for an unregulated contaminant.
In response to the EPA’s proposed rulemaking, Benesh said it is a “shameful delay tactic, falling far short of what is needed to jumpstart the cleanup process in contaminated communities and to hold polluters accountable… Years after promising to address PFAS contamination through Superfund, the EPA has opted to kick the can down the road rather than taking meaningful action. This is an insult to the people who were exposed to toxic PFAS chemicals for decades and who will have to wait even longer for justice.”
The Following is from the EPA Pre-Publication Notice
For this rulemaking effort, in addition to using the best available science, the Agency will seek recommendations from the EPA Science Advisory Board and consider public comment on the proposed rule. Therefore, EPA anticipates further scientific review of new science and an opportunity for additional public input prior to the promulgation of the regulatory standard for PFOA and PFOS.
What Contaminants did EPA Consider for Regulation?
On March 10, 2020, EPA published preliminary regulatory determinations for eight contaminants: PFOS, PFOA, 1,1-dichloroethane, acetochlor, methyl bromide, metolachlor, nitrobenzene, and RDX, and to not regulate six contaminants: dichloroethane, acetochlor, methyl bromide, metolachlor, nitrobenzene, and RDX.
109 contaminants that are currently not subject to any proposed or promulgated national drinking water regulation, are known or anticipated to occur in public water systems, and may require regulation have been identified. Since some of the CCL 4 contaminants do not have adequate health and/or occurrence data to evaluate against the three statutory criteria as when EPA evaluated the previous CCLs, the Agency used a three-phase process to identify which of the contaminants are candidates for regulatory determinations. Priority was given to identifying contaminants known to occur or with substantial likelihood to occur at frequencies and levels of public health concern.
The EPA’s Next Steps
As required by SDWA, EPA will initiate the process to propose a NPDWR for PFOA and FOS within 24 months of the publication of this document in the Federal Register. For this rulemaking effort, in addition to using the best available science, the Agency will seek recommendations from the EPA Science Advisory Board and consider public comment on the proposed rule. Therefore, EPA anticipates further scientific review of new science and an opportunity for additional public input prior to the promulgation of the regulatory standard for PFOA and PFOS. Additionally, the Agency will continue to collect and review additional state and other occurrence information during the development of the proposed NPDWR for PFOA and PFOS. The Agency will not be taking any further regulatory action under SDWA for the six negative determinations at this time.