How Low Can You Go?

The United States Environmental Protection Agency (“EPA”) released four new drinking water health advisories for per- and polyfluoroalkyl substances (“PFAS”) on June 15, 2022. 

NEW EPA Drinking Water Health Advisory Levels
Chemical Lifetime Health Advisory Level (ppt) Minimum Reporting Level (ppt)
PFOA 0.004 (Interim) 4
PFOS 0.02 (Interim) 4
GenX Chemicals 10 (Final) 5
PFBS 2,000 (Final) 3

In 2016, EPA issued a health advisory setting lifetime levels for PFOA and PFOS of 70 ppt. These 2022 new levels are significantly stricter and, as EPA warns, “are below the levels at which analytical methods can measure PFOA and PFOS.” These levels are also significantly below the maximum contaminant level (“MCL”) of 20 ppt for six PFAS chemicals (the “PFAS6”) set by the Massachusetts Department of Environmental Protection (“MassDEP”) in 2020. MassDEP’s PFAS6 include PFOA and PFOS but not GenX chemicals or PFBS. Although EPA’s health advisories are “nonenforceable and non-regulatory,” they can have the potential to influence additional regulatory responses from state authorities.

The new PFOA and PFOS health advisory levels are based on human studies in populations exposed to these chemicals, while the GenX chemicals and PFBS levels are based on animal studies following oral exposure to these chemicals. The PFOA and PFOS levels are interim while the EPA Science Advisory Board reviews EPA’s analyses, but “EPA does not anticipate changes that will result in health advisory levels that are greater than the minimum reporting levels.” EPA’s lifetime health advisories for GenX chemicals and Perfluorobutanesulfonic acid (“PFBS”) are final and are based on final EPA toxicity assessments completed in 2021.

If water sampling results exceed the health advisory levels, EPA recommends that drinking water suppliers undertake additional sampling to assess the level, scope, and localized source of contamination, work with state authorities to ensure compliance with state regulations, inform customers about PFAS levels in their drinking water, and take steps to limit exposure. EPA has published a separate fact sheet for public water systems.

“Show Me the Money”

In addition to the regulatory “stick,” EPA will provide a funding “carrot.”  EPA has invited states and territories to apply for the first $1 billion of Bipartisan Infrastructure Law grant funding to address PFAS and other emerging contaminants in drinking water.  The new funding comes from the Emerging Contaminants in Small or Disadvantaged Communities Grant Program and can be used to reduce PFAS in drinking water in communities facing disproportionate impacts. EPA will issue guidance later this year detailing eligible uses for the funds and providing more information on how water systems can apply for funding.

The new regulatory escalations have major implications for public water suppliers, private well users, MCP sites, and regulatory agencies.  MassDEP will review the advisory data, may participate in the Science Advisory Council review, and could consider revisions to the MassDEP ORSG advisory and drinking water and site cleanup regulations.  The water supply community and LSPs will face more uncertainties and challenges about how to cope with “Forever Chemicals”:  finding testing laboratories with certified analytical methods to measure parts per quadrillion, searching for cleanup technologies to remove quantum concentrations, and engaging in challenging public communications with customers, the general public, and the media about lifetime risks from very small exposures.