LegiStorm

Summary:

Per- and polyfluoroalkyl substances (PFAS) are fluorinated chemicals that have been used in an array of commercial, industrial, and U.S. military applications for decades. Some of the more common applications include nonstick coatings, food wrappers, waterproof materials, and fire suppressants. Detections of some PFAS in drinking water supplies and uncertainty about potential health effects associated with exposure to particular PFAS above certain concentrations have increased calls for the U.S. Environmental Protection Agency (EPA) to address these substances in public water supplies. For those few PFAS for which scientific information is available, animal studies suggest that exposure to particular substances above certain levels may be linked to various health effects, including developmental effects; changes in liver, immune, and thyroid function; and increased risk of some cancers. In 2009, EPA listed certain PFAS for formal evaluation under the Safe Drinking Water Act (SDWA) to determine whether regulations may be warranted. EPA has not issued drinking water regulations for any PFAS but has taken various actions to address PFAS contamination. In the 116th Congress, Members have introduced more than 40 bills to address PFAS through various means. The National Defense Authorization Act (NDAA) for FY2020, P.L. 116-92, includes multiple PFAS provisions regarding primarily the Department of Defense (DOD), but several involve EPA and other federal agencies. Among the EPA provisions, Title LXXIII, Subtitle A, directs EPA to require public water systems to conduct additional monitoring for PFAS and creates a grant program for public water systems to address PFAS and other emerging contaminants. The House of Representatives passed H.R. 535, a broad PFAS bill, on January 10, 2020. Among SDWA provisions, H.R. 535 would direct EPA to issue drinking water regulations for at least two PFAS within two years and establish a separate standard-setting process for PFAS. In February 2019, EPA released its PFAS Action Plan, which discusses the agency's current and proposed actions to address these substances under its various statutory authorities. Regarding SDWA, the plan notes that EPA is following the statutory process for evaluating PFAS—particularly perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—to determine whether national primary drinking water regulations are warranted. The Fall 2019 Regulatory Agenda indicated that EPA planned to propose preliminary regulatory determinations for PFOA and PFOS by the end of 2019 and finalize determinations by January 2021. The absence of a national health-based drinking water standard for any PFAS has increased interest in the SDWA process for regulating contaminants. The statute prescribes a risk- and science-based process for evaluating and regulating contaminants in drinking water. The evaluation process includes identifying contaminants of potential concern, assessing health risks, collecting occurrence data (and developing reliable analytical methods necessary to do so), and making determinations as to whether a national drinking water regulation is warranted for a contaminant. PFAS include thousands of diverse chemicals, and setting drinking water standards for individual or groups of PFAS raises technical and scientific challenges. For example, SDWA requires EPA to make determinations and set standards using the best available peer-reviewed science and occurrence data. However, data on the potential health effects and occurrence are available for few of these substances. Further, EPA may face challenges in developing test methods and identifying treatment technologies for a diverse array of PFAS. Contamination of drinking water by PFAS can pose challenges for states and communities, and some have called for EPA to establish enforceable standards. State drinking water regulators have noted that many states may face significant obstacles in setting their own standards. For contaminants not regulated under SDWA, EPA is authorized to issue non-enforceable health advisories, which provide information on health effects, testing methods, and treatment techniques for contaminants of concern. In 2016, EPA established health advisory levels for PFOA and PFOS in drinking water at 70 parts per trillion (separately or combined). SDWA also authorizes EPA to take actions it deems necessary to abate an imminent and substantial endangerment to public health from a contaminant present in or likely to enter a public water system or an underground source of drinking water. Actions may include issuing orders requiring persons who caused or contributed to the endangerment to provide alternative water supplies or to treat contamination. Since 2002, EPA has used this authority to require responses to PFOA and/or PFOS contamination of water supplies associated with four sites, including three DOD sites.