In October 2021, the EPA released its PFAS Roadmap, which stated explicit goals and deadlines for over twenty action items specific to PFAS. As part of the Roadmap, the EPA pledged to re-assess the existing Health Advisories (HAs) for PFOA and PFOS, as well as establish HAs for PFBS and GenX chemicals. Today, the EPA fulfilled its promise on all fronts when it set HAs for PFOA (interim), PFOS (interim), PFBS (finals) and GenX (final). While not enforceable levels for PFAS in drinking water, the EPA’s PFAS Health Advisories are nevertheless incredibly significant for a variety of reasons, including influence on future federal and state drinking water limits, as well as potential impacts on future PFAS litigation.

EPA’s PFAS Health Advisories

Today, the EPA issued interim updated drinking water health advisories for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) that replace those EPA issued in 2016 (the 70ppt advisory level). According to the EPA, “the updated advisory levels, which are based on new science and consider lifetime exposure, indicate that some negative health effects may occur with concentrations of PFOA or PFOS in water that are near zero. These interim health advisories will remain in place until EPA establishes a National Primary Drinking Water Regulation.” At the same time, EPA also issued final health advisories for PFBS and GenX chemicals. In chemical and product manufacturing, GenX chemicals are considered a replacement for PFOA, and PFBS is considered a replacement for PFOS.

The levels set by the EPA’s PFAS Health Advisories are as follows:

Important to note is that the health advisories for PFOA and PFOS are interim (akin to proposals), while the ones for PFBS and GenX are final.

Impacts On EPA’s PFAS Health Advisories

Today’s Health Advisory levels for PFOA and PFOS are much lower than the HAs set for the two chemicals in 2016, when the 70 ppt advisory level was set. Up until the present, the 70 ppt Health Advisory level was used by numerous states as a benchmark to set enforceable drinking water standards at the state levels, with many states opting to set standards below 70 ppt.

As we discussed in 2021, the work of the Science Advisory Board (SAB) in vetting the EPA’s proposals for drinking water standards under the Safe Drinking Water Act (SDWA) suggested that the EPA would be considering drinking water standards for certain PFAS well below the 70 ppt advisory level from 2016. Today’s news regarding revised and newly issues Health Advisories certainly supports that opinion. The EPA will now consider additional data with respect to PFOA and PFOS, which was a suggestion made by the SAB and a reason why the EPA’s HAs for PFOA and PFOS are interim and not final, before making the PFOA and PFOS HAs final, as well. Previous comments during public hearings of the SAB have suggested that a “near zero” level may in fact be what the EPA feels that the science supports.

Concerns are sure to be raised by many industries, states, and environmental professionals given the difficulties in accurately detecting such low levels of PFOA and PFOS given the current technology. If the EPA puts forth enforceable drinking water levels similar to or lower than the HAs, states that have spent considerable money aggressively pursuing their own PFAS pollution concerns at levels set within their borders will have to pivot and adjust their regulations, practices, and enforcement practices to account for the EPA’s significantly lower drinking water levels.

Conclusion

Now more than ever, the EPA is clearly on a path to regulate PFAS contamination in the country’s water, land and air. The EPA has also for the first time publicly stated when they expect such regulations to be enacted. These regulations will require states to act, as well (and some states may still enact stronger regulations than the EPA). Both the federal and the state level regulations will impact businesses and industries of many kinds, even if their contribution to drinking water contamination issues may seem on the surface to be de minimus. In states that already have PFAS drinking water standards enacted, businesses and property owners have already seen local environmental agencies scrutinize possible sources of PFAS pollution much more closely than ever before, which has resulted in unexpected costs. Beyond drinking water, though, the EPA PFAS Roadmap shows the EPA’s desire to take regulatory action well beyond just drinking water, and companies absolutely must begin preparing now for regulatory actions that will have significant financial impacts down the road.