Forgot password?
Sign up today and your first download is free.

The Insider

Fights Grow Over PFAS With EPA's Early Efforts On Waste, Water Rules

EPA, states, industry and lawmakers are stepping up their fights over the agency’s early efforts to set water and waste rules for per- and polyfluoroalkyl substances (PFAS), as backers of tough rules are praising the initial steps while also warning that EPA might not ultimately go far enough.

The sparring comes amid ongoing bipartisan concern over the ubiquitous toxic chemicals, with many Democrats and environmental groups pressing the agency to set regulatory standards for the substances in drinking water and for waste cleanups.

To that end, a top Senate Democrat pressed EPA about its apparent delay in designating two key PFAS as “hazardous substances” under Superfund law:

Carper Seeks Timeline For PFAS Designation, Cites Apparent OMB Delay
Senate environment panel ranking member Tom Carper (D-DE) is pressing EPA to confirm whether the White House has stalled for months an agency plan to designate two key per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Superfund law, seeking a definitive timeline for issuing the finding.

Carper in recent written questions suggests that EPA’s proposal to list the two most studied PFAS as “hazardous” has “been completed for many months,” but that the White House has directed the agency not to submit it for inter-agency review.

If that is not the case, he writes, “please provide a specific date by which this proposal will be submitted for interagency review,” citing prior EPA promises to act on the measure and missed deadlines.

One source says the draft Superfund regulation was ready to be submitted to OMB last fall, and may have informally been shared with that office. The source is doubtful that the Trump administration wants to place even a draft hazardous substance designation rule before the public, noting that such a designation would open up federal agencies and other parties with PFAS releases to third-party or contribution lawsuits under the Superfund law.

Further, the source surmises that the lack of progress on the Superfund designation may also indicate lack of enthusiasm for moving ahead with separate drinking water standards for the chemicals, despite initial agency steps in that direction.

On the water issue, several states and environmentalists are backing EPA’s preliminary steps while simultaneously urging the agency to take a broader approach to the issue:

Several States, Industries Spar Over EPA’s PFAS Drinking Water Review
Several states and environmental groups are backing EPA’s preliminary work towards developing drinking water standards for two per- and polyfluoroalkyl substances (PFAS) and urging an expanded effort to other chemicals in the class, sparring with industries that object to broadening the effort and even dispute the initial evaluation.

EPA took comment through June 10 on its February announcement that it plans to develop a maximum contaminant level (MCL) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).

The agency’s announcement came after long-time, continuing pressure from lawmakers and others for EPA to set drinking water limits for PFAS, with Congress making attempts over the past year to force EPA action. But the launch of the review also prompted some agency critics to fault EPA for failing to address more than the two most studied PFAS, while Democrats also predicted the agency will take too long to address current risks.

A coalition of 22 Democratic state attorneys general led by officials from California, Pennsylvania and Wisconsin urged EPA to “strengthen and expand” drinking water regulation of PFAS.

More than 10 states have set or proposed drinking water or groundwater standards or guidelines for PFOA and PFOS, “which are the most extensively studied PFAS to-date and, as such, their toxicity has been well characterized in humans and animal studies,” the Natural Resources Defense Council says in separate comments.

But some industry groups are disputing that EPA’s preliminary determination is valid, or pressing the agency to at least limit its and states’ approach to the chemicals.

For example, the PFAS Regulatory Coalition -- which represents a mix of industrial companies, municipal entities and other groups, but no PFAS manufacturers -- backs a uniform approach by EPA to PFAS regulation, where science demonstrates that individual compounds pose risks to human health or the environment.

Even as some states move to consider setting standards for other PFAS beyond the initial two chemicals, the coalition says it does not believe EPA can justify doing so, “and encourages the Agency to assert its leadership in minimizing the number of other state standards for PFAS compounds other than PFOA and PFOS.”

Yet, some states are urging EPA take additional steps to limit PFAS, including by setting standards for the chemicals in stormwater permits:

States Urge EPA To Address PFAS In Industrial Stormwater General Permit
Several states are asking EPA to add requirements to its proposed industrial stormwater general permit to limit pollution from per- and polyfluoroalkyl substances (PFAS) through pollution prevention actions and monitoring requirements, with Colorado warning it may deny certification of the permit without the changes.

The Colorado Department of Public Health and Environment in June 1 comments asks EPA to add language addressing PFAS to the proposed multi-sector general permit (MSGP) “because PFAS in stormwater, even in very low quantities, can represent a significant threat to human health.”

The permit is only binding in the four states and other non-state territories where the agency directly administers Clean Water Act permits, but many states with their own permit regimes use the MSGP terms as a model for their regulations.

Separately, the Massachusetts Department of Environmental Protection in June 1 comments requests EPA add a requirement for annual PFAS monitoring of effluent for 13 different sectors. The state notes that many of the sectors covered by the MSGP have the potential to use PFAS-containing products and that there are growing concerns about PFAS impacts on human health and the environment.

Massachusetts recommends that the monitoring requirement include at a minimum monitoring for PFOA and PFOS, the two compounds for which EPA has issued a drinking water health advisory and plans to develop an enforceable drinking water standard.

The New Mexico Environment Department has also called on EPA to require PFAS monitoring.

However, the PFAS-related disputes come as the agency finalized its move to drop an MCL for perchlorate in drinking water after concluding water systems have sufficiently lowered the chemical’s occurrence in the water supply:

EPA Reversal On Perchlorate Water Standard May Set Precedent For PFAS
In an expected move, EPA has issued a final decision that federal regulation of perchlorate in drinking water is unnecessary because water systems have sufficiently lowered the chemical’s occurrence in the water supply, potentially setting a precedent for making a similar argument against regulation of two per- and polyfluoroalkyl substances (PFAS).

One industry attorney defends EPA’s action, contrasting it with the agency’s proposed affirmative determination to craft such standards for PFOA and PFOS. The “perchlorate decision is the most recent example of at least several proper features of MCL development decision making that are not present in the preliminary determination for PFOA and PFOS,” the source contends.

But while there is a larger contingent of groups -- bipartisan lawmakers, states and utilities -- calling for PFAS regulation under SDWA as compared to perchlorate, the perchlorate decision could potentially set a precedent for axing a planned SDWA regulation if regulatory and other actions have already reduced the chemical in drinking water systems. It is unclear though whether EPA will apply a similar theory to its proposed PFAS regulatory determination.

Regarding the PFAS determination, some industry parties are arguing that the drinking water occurrence data for supporting a positive decision is out-of-date.