Near Zero: EPA Implements New PFAS Lifelong Health Advice – Publications

LawFlash

June 17, 2022

In its latest action on the PFAS Roadmap, the U.S. Environmental Protection Agency provided new and updated drinking water health advice for the four PFAS chemicals. These health tips are a temporary step in a broader process of regulating PFAS at the federal level and are reaching a time of unprecedented state and federal regulatory and legal action to address the PFAS in the environment.

On June 15, the Environmental Protection Agency (EPA) significantly reduced the level of health advice on drinking water (HAL) by per- and polyfluoroalkyl (PFAS) under its Safe Drinking Water Act (SDWA). These include the revised levels of perfluorooctanoic acid (PFOA) and perfluoroocthanesulfonic acid (PFOS), along with the recent new limits known as perfluorobutane sulfonic acid (PFBS) and hexafluoropropylene oxide dimer acid and its ammonium salt.

Lifelong health counseling levels identify the concentration of chemicals in drinking water throughout an individual’s life in which adverse health effects are not expected to occur or below. Although HALs are non-compliant and non-compliant, they can be used to develop drinking water rules and restrictions, influence state and local regulations, and shape public debate about the safety of certain chemicals.

Recently announced PFAS HALs

  • PFOA = 0.004 ppt Updated health advice
  • Provisional Updated Health Advice for PFOS = 0.02 ppt
  • GenX final health advice for chemicals = 10 ppt
  • Final Health Advice for PFBS = 2,000 ppt

The EPA provided these new values ​​for PFOA and PFOS as a “provisional” recommendation, acknowledging that they are based on new toxicity data and draft analyzes currently being considered by the Agency’s Scientific Advisory Board, and that more new data is likely to be available. The health advice will remain in effect until the EPA’s next PFAS National Drinking Water Regulations come into force, unless otherwise updated by the EPA.

The EPA set provisional advisory levels for 0.004 parts (ppt) per trillion, or four parts per trillion. kuatrilioi (ppq) —and 0.02 ppt — or 20 ppq— for PFOS. To put this in perspective, one part per quadrillion is the equivalent of a drop of water measuring approximately 368 meters on one side and as high as the Empire State Building, or about 31.7 million seconds per year. The EPA’s new interim PFOAs and PFOS HALs represent the 70 ppt guidance values ​​of the Obama era for PFOAs and PFOSs, individually or in combination, established by the EPA in 2016.

The latest EPA new health advice sets PFBS and GenX chemicals, which are generally considered to be PFOS and PFOA substitutes for chemical and product manufacturing, respectively, with lifetime exposure levels of 2,000 ppt for PFBS and 10 ppt for GenX . These latest HALs are based on the EPA’s latest 2021 animal toxicity studies for PFBS and GenX chemicals. Unlike the PFOA and PFOS warnings, the EPA announced that the PFBS and GenX warnings are final.

POTENTIAL IMPACT OF NEW HEALTH ADVICE

The EPA’s newly announced HALs will affect the development of future federal and state regulations, identify and clean up contaminated sites, predict potential litigation trends, and signal EPA industries for future regulation and guidance with PFAS. The updated PFOA and PFOS warnings are in lower order of magnitude than those identified by the EPA in 2016, and the HALs for GenX and PFBS reflect the intent to aggressively address the potential exposure of the EPA’s PFAS.

These updated health tips are also a stepping stone to a broader federal PFOA and PFOS regulatory process and are behind the unprecedented state regulatory and legislative action as dozens of states are actively reviewing PFAS contamination laws and policies. According to the EPA PFAS Roadmap, the EPA is expected to propose a regulation in the fall of 2022 (with a final regulation in the fall of 2023) to implement the National Primary Drinking Water Regulation (NPDWR) for PFOA and PFOS, which would set enforceable limits and require monitoring. of the public water supply. Although the criteria to be considered by the EPA in setting standards for the SDWA differ from those of issuing HALs (e.g., the EPA must consider economic factors when proposing NPDWRs), the EPA provides updated updated guidelines for PFOA and PFOS that we expect the EPA to act aggressively. when setting limits to be met.

In addition, the newly announced HALs could boost the nationwide push for clean-up requirements, while also acting as a starting point for statewide enforcement. Since HALs (both temporary and permanent) are not compliant with the standards, they would not be considered Applied or Relevant and Appropriate Conditions (ARARs) according to CERCLA, but could be a “TBC” (to be considered) reference, similar to a guidance document. .

As a result, these tips can inform you not only about future cleanups, but also about the levels of cleaning you are currently doing. At the federal level, the PFAS’s historic recommendations have been taken by the Office of Land and Emergency Management as a temporary recommendation for groundwater cleanup, and the 70 ppt level has been used by the U.S. military as its cleanup guide. Many states took non-compliant health care counseling for 70-ppt EPA for PFOA and PFOS (e.g., Colorado, Ohio) or did not take formal action and relied on de facto EPA HALs as a de facto standard. States that have met the criteria for GenX chemicals are significantly higher than the concentration levels of the new EPA HAL (e.g., the North Carolina Interim Health Target for GenX 140 ppt). Other states (e.g., New Jersey and Vermont) went one step further and established rules that would be ARARs, lower than the first HALs but higher than the new HALs.[1] Managers and regulators will need to address the effects of the new EPA HALs.

These new levels of health advice have been reviewed by the EPA’s Office of Land and Emergency Management, including five PFAS, PFOA, PFOS and GenX. . Regulated entities may expect the RSL and RML to be adjusted in the next half-yearly update.

Finally, it remains to be seen how these new restrictions will work in practice in terms of testing (e.g., laboratory detection limits and methods) and treatment capabilities. For example, according to currently accepted analytical methods, the detection limits for PFOA and PFOS are 4 ppt, more than 1000x and 200x of the provisional EPA HALs, respectively. In a statement following the announcement of the new HALs, the EPA acknowledges the limitations of currently approved testing and detection methods,[2] but at the same time he stressed to the regulated parties that the advice is not the levels of detection.

It will be crucial for stakeholders to continue to monitor state and federal actions and guidelines and evaluate operations as states and stakeholders and regulated parties continue to assess the impacts of new advice.

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CONTACTS

If you have any questions or would like more information on the topics discussed in this LawFlash, please contact one of the following attorneys at Morgan Lewis:

Princeton
John McGahren
Stephanie R. Feingold
Laurie Matthews

Boston
Julie Silva Palmer

Washington, DC
Duke K. McCall, III
Drew Cleary Jordan

Philadelphia
Glen R. Stuart

Los Angeles
James R. Dragna
Rick R. Rothman
Yardena R. Zwang-Weissman
Jeremy Esterkin
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[1] The EPA’s 2016 PFOA and PFOS health advice were not criticized after the state and federal announcement, including findings from the Toxic Substances and Diseases Registry Agency, suggesting that the EPA’s 70 ppt advice may be too high.

[2] “Based on current methods, the levels of health counseling in PFOA and PFOS are below detection (determining whether a substance is present) and quantifying (the ability to reliably determine how much of a substance is present). – at levels that exceed the tips, even if the test does not indicate the level of these chemicals “. EPA, Questions and Answers: PFOA, PFOS, GenX Chemicals and PFBS Drinking Water Health Tips.

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