On February 20, 2020, the U.S. Environmental Protection Agency (“EPA”) announced its proposal of a preliminary determination to regulate two contaminants - perflouorooctanoic acid (“PFOA”) and perflourooctane sulfonate (“PFOS”) – from the polyfluoroalkyl substances (“PFAS”) family of chemicals. This proposal marks the beginning of the agency’s process to regulate PFOA and PFOS in drinking water, under mounting pressure from both Congress and the public.

PFAS compounds have been used extensively for decades in connection with the manufacture of nonstick coatings, firefighting foam, and stain repellent surfaces. Due to their extremely stable nature in the environment, they are often referred to as “forever chemicals,” and have been linked to numerous adverse health effects, including certain cancers, low birth weight, and immunological impacts. Today, the number of PFAS-related compounds that have been identified number in the thousands.

To date, EPA has established “health advisories” for PFOA and PFOS at 70 parts per trillion (“ppt”), which are non-regulatory and unenforceable. Pursuant to the federal Safe Drinking Water Act (“SDWA”), EPA is now proposing a regulatory determination for PFOA and PFOS, which is essentially a threshold decision as to whether to regulate and establish enforceable Maximum Contaminant Levels (“MCLs”) for those contaminants. Once this preliminary regulatory determination is published in the Federal Register, there will be a 60-day comment period for interested parties to submit comments and additional data for EPA’s consideration. EPA will then decide, upon evaluation of those comments and data, whether it will proceed with rulemaking to set drinking water MCLs for PFOA and PFOS. 

It is important to note that actual MCLs are not being proposed at this time. Even if EPA makes a final determination to regulate PFOA and PFOS, it may still be a few years before we see MCLs in effect at the federal level. Following a final regulatory determination, EPA has two years to promulgate proposed MCLs for PFOA and PFOS, and 18 months thereafter to adopt those MCLs, with the possibility of an extension.

The EPA’s preliminary determination follows the Legislature’s introduction of the PFAS Action Act, H.R. 535, early last year. Currently pending in Congress, the proposed legislation would require EPA to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), and would direct EPA to determine whether to address all other PFAS compounds individually or in groups. It would also set a two-year deadline for EPA to promulgate drinking water standards for PFAS compounds, including, at a minimum, PFOA and PFOS.

While the process is getting underway at federal level, New Jersey will soon have drinking water standards in effect for three PFAS compounds. In 2018, the New Jersey Department of Environmental Protection (“NJDEP”) adopted an MCL of 13 ppt for perfluorononanoic acid (“PFNA”), and public water systems have already begun monitoring for PFAS in accordance with state requirements. In April 2019, NJDEP also proposed MCLs for PFOA and PFOS of 14 ppt and 13 ppt, respectively, based on the recommendations of the Drinking Water Quality Institute. Those MCLs are currently pending adoption.

If you have any questions regarding the effects of EPA’s preliminary determination, or on New Jersey PFAS requirements, Parker McCay’s environmental attorneys are available to assist.