The EPA is moving towards establishing a drinking water standard for PFOA and PFOS, and has stated that it is considering avenues for regulating additional groups of PFAS under the Safe Drinking Water Act (SDWA) as well. On February 22, 2021, the EPA announced two actions under SDWA to address PFAS.
First, the agency reissued the final regulatory determination to implement a National Primary Drinking Water Regulation (NPDWR) for PFOS and PFOA (the “Determination”). This Determination is a continuation of an intended action under the Trump administration, but indicates the Biden administration intends to continue to move forward. The Determination also states that the EPA is considering the regulation of additional PFAS chemicals.
In a related move, on the same day, the EPA indicated an even stronger focus on this issue than the previous administration. The EPA revised the proposed fifth SDWA-directed review under the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) to include an additional 29 PFAS chemicals. The proposed UCMR 5, once published in the Federal Register, will be subject to a 60-day public comment period. If promulgated, the UCMR 5 will impose data collection obligations on public water systems of a certain size. When completed, that data collection can serve as part of the underpinning for additional SDWA actions, including adding chemicals to the Contaminant Candidate List and potentially regulating those chemicals under the SDWA. The action is unusual in targeting and potentially regulating a family of chemicals in that the list of potential contaminants is specifically focused on PFAS. The February 22nd regulatory determination triggers a rulemaking that, in the past, has often resulted in the establishment of a maximum contaminant level for the contaminants on which the rile focused.
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