Blog Viewer

PFAS Drinking Water Proposed Rule Making and More Announced by US EPA

By Vanessa Gonzales posted 03-28-2023 10:06 AM

  
water drop

On March 14th, following months of delay, the United States Environmental Protection Agency (EPA) announced the proposed National Primary Drinking Water Regulation (NPDWR) for six PFAS, including perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), perfluorohexane sulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS). EPA is proposing to establish legally enforceable levels, known as Maximum Contaminant Levels (MCLs) for the six PFAS in drinking water.

The scope of the regulated chemicals was a bit of a surprise, as EPA had previously indicated that PFOS and PFOA were the only categories of PFAS that would be regulated. It is notable that the other four may have particular significance as they represent chemicals that industry switched to after health concerns regarding PFOA and PFOS became clearer.

For example, GenX is the chemical that DuPont and its spinoff company, Chemours, used to replace PFOA in Teflon and other products. PFBS is the chemical that 3M Co. used to replace PFOS, and the other two chemicals have a variety of uses, and they break down or degrade. PFHxS, for example, is used in many products, including firefighting foam, textiles and metal plating, and PFNA is a cousin of PFOA that was used as a processing aid in making plastics.

EPA’s rule proposes to regulate the four new PFAS using an approach that accounts for the fact that they are often combined as part of a mixture. The agency believes the chemicals can be more dangerous in combination than they are on their own, and so EPA is proposing a method called a “hazard index”. Under the proposal, drinking water utilities would monitor for all four PFAS and input the results into a calculation that indicates whether the specific levels and combinations of the four PFAS pose a health danger. 

Hazard indexes are a tool frequently used in Superfund cleanups but have never been used in a drinking water regulation before — although EPA floated the possibility to its outside scientific advisers.

Details on the hazard index are provided in the factsheet links below. EPA expects approximately 66,000 water systems to be subject to the rule, with approximately 3,400-6,000 systems expected to exceed one or more of the MCLs. EPA’s estimates of the cost of the proposed rule to public water systems include capital and yearly operation and maintenance. EPA projects baseline costs of between $772 million and $1.2 billion annual for water system treatment to increase $30-60 million per year if water systems are required to dispose of PFAS material as hazardous waste – which is likely in the case of some water systems, given the pending rulemaking classifying PFAS as a hazardous material under Superfund (see more on listen sessions below).

The proposed rule would, once finalized and in effect, also require public water systems to:

        Monitor for these PFAS

        Notify the public of the levels of these PFAS

        Reduce the levels of these PFAS in drinking water if they exceed the proposed standards.

Detailed fact sheets highlighting details and background can be found here and here. 

EPA is requesting public comment on the proposed regulation. Once the public comment period officially opens – which will occur once the rule is published in the federal Register – the public will have sixty days to file those comments. A pre published version of the rule is available here.

Public comments can be provided at that time at www.regulations.gov under Docket ID: EPA-HQ-OW-20220114 (Information on submitting comments to EPA dockets can be found here).

EPA will be holding a webinar about the proposed PFAS NDPWR designed for water agencies on March 29, 2023.

The thirty-minute webinar will be information only, no questions will be taken, and registration is required to attend. The webinar recording and presentation materials will be made available following the webinar on EPA’s PFAS website (a previous general information webinar was held on March 14th).

EPA will also be holding a public hearing on May 4, 2023, where members of the public can register to attend and provide verbal comments to EPA on the rule proposal. Registration is required to attend and the last day to register to speak at the hearing is April 28, 2023. For questions related to the public hearing, contact PFASNPDWR@epa.gov.

EPA expects to finalize the regulation by the end of 2023. Though, once the rule becomes final, litigation from the industrial – and possibly other sectors – is widely expected.  

Superfund Designation Related Costs Listening Sessions

The U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) recently held public listening sessions to receive individual input related to concerns about potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as “Superfund.” 

The input received will be reviewed and considered by EPA in drafting a CERCLA per- and polyfluoroalkyl substances (PFAS) enforcement discretion and settlement policy to the extent that PFAS cleanup enforcement efforts occur under CERCLA.  There will be opportunities to provide written input submissions in a separate form.

These listening sessions – the first of two was held March 14th – were intended to focus on an enforcement policy related to responsible parties’ financial obligations under PFAS contamination response actions. The sessions were not intended focus on the actions needed to address PFAS contamination or EPA’s progress in the Agency’s PFAS Strategic Roadmap commitments.

EPA’s CERCLA PFAS enforcement discretion and settlement policy is aimed at addressing stakeholder concerns and reducing uncertainties by clarifying when EPA intends to use its CERCLA enforcement authorities or its CERCLA enforcement discretion. 

To the extent PFAS cleanup enforcement efforts occur under CERCLA, EPA will develop a CERCLA PFAS enforcement discretion and settlement policy. The policy will take into account various factors, such as EPA’s intention to focus enforcement efforts on PFAS manufacturers and other industries whose actions result in the release of significant amounts of PFAS into the environment, and EPA’s intention not to focus on pursuing entities where factors do not support taking an enforcement action.

Although EPA will not provide responses to input that it receives through this solicitation, EPA will take all input it receives into consideration in the development of an enforcement discretion and settlement policy.

Written comments may be submitted until March 31, 2023. More information about comment submissions may be viewed here.

More information on the CERCLA PFAS Enforcement Discretion Listening Sessions can be found at: CERCLA PFAS Enforcement Listening Sessions | US EPA

Important Note: These listening sessions are separate from EPA’s PFOA and PFOS hazardous substance designation rulemaking process. The input provided through the listening sessions is not part of the rulemaking comment docket. The hazardous substance designation rulemaking comment period has closed.

PFAS Superfund Designation: Water Facility Update

Last August, the EPA released a Notice of Proposed Rulemaking (NOPR) designating the two most studied and most widely used “forever chemicals” – PFOA and PFOS – as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), otherwise known as “Superfund.” The comment period for the proposed rule closed on November 7, 2022. EPA is now reviewing, evaluating, and processing the comments with a plan to issue a final rule in mid-2023.

EPA is planning to not pursue Superfund enforcement actions regarding PFAS contamination in several sectors, including municipal wastewater and drinking treatment facilities, farms, municipally owned airports and publicly owned and operated landfills, though officials say they will consider additional sources for relief, such as stormwater systems.

“At this point in the development of the policy, EPA does not intend to pursue under [the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)] community water utilities and publicly owned treatment works,” EPA Supervisory Attorney Ken Patterson said during a March 14 virtual “listening session” on the agency’s forthcoming enforcement discretion policy discussed above.

Many national and state organizations, including the National Association of Clean Water Agencies and the Environmental Council of States are strongly opposed to the rule making. Such assurances from EPA will likely be of small comfort until there is a legislative “fix” to the potential legal exposure facing water agencies. 

For more details on Mr. Patterson’s comments and related background, see recent trade press article.   

For more details on the Superfund designation see NSDC’s September PFAS Update.

Bipartisan Infrastructure Funding Released

Recently, EPA announced the availability of $2 billion from President Biden’s Bipartisan Infrastructure Law to address emerging contaminants, including PFAS, in drinking water across the country. This investment, which is allocated to states and territories, will be made available to communities as grants through EPA’s Emerging Contaminants in Small or Disadvantaged Communities grant program. These funds will promote access to safe and clean water in small, rural, and disadvantaged communities while supporting local economies.  

EPA Proposed Rule to Avoid Restart PFAS Use

EPA has proposed a rule that would prevent a business or individual from starting or resuming – absent a complete EPA review and risk determination – the manufacture, processing or use of an estimated 300 PFAS that have not been made or used for many years, known as “inactive PFAS.” In the past, these chemicals may have been used in many industries in a variety of ways, including as binding agents, surfactants, sealants and gaskets, and may also have been released into the environment. Without this proposed rule, companies could resume uses of these PFAS absent notification to and review by EPA.

EPA Expands Public Outreach on PFAS Analytics

EPA has released a new interactive webpage, called the PFAS Analytic Tools, which bring together multiple sources of information on PFAS in one place. These tools will help the public, researchers, and other stakeholders better understand potential PFAS sources in their communities. 

EPA’s PFAS Comprehensive Approach Continues     

The proposed drinking water regulation and the above listed activities reflect major milestones in advancing the goals of EPA’s umbrella effort to address PFAS – the agency’s PFAS Strategic Roadmap.  

Background: In October 2021, EPA Administrator Michael S. Regan announced the Agency’s PFAS Strategic Roadmap—laying out a whole-of-agency approach to addressing PFAS. The roadmap sets timelines by which EPA plans to take specific actions and commits to bolder new policies to safeguard public health, protect the environment, and hold polluters accountable. 

For further background on the PFAS action plan, please review NSDC’s August PFAS Update Memo.

This article was contributed by the National Special Districts Coalition (NSDC) with revisions and updates by CSDA. NSDC will continue to monitor and provide updates on legislative and administrative action on federal policy efforts related to PFAS. CSDA is a founding member of NSDC and California Special Districts receive access to NSDC information and benefits through membership in CSDA.


#AdvocacyNews
#FeatureNews
#Water
#Mandates
0 comments
3364 views

Permalink