As anticipated, the Environmental Protection Agency (EPA) announced on June 18, 2020, that it will not regulate perchlorate, a substance primarily found in rocket fuel and munitions, under the Safe Drinking Water Act (SDWA). Before determining to regulate a chemical or substance under the SDWA, the EPA must consider whether (1) the contaminant may have an adverse effect on the health of persons; (2) the contaminant is known to occur or there is a substantial likelihood that the contaminant will occur in public water systems with a frequency and at levels of public health concern; and (3) in the sole judgment of the Administrator, regulation of such contaminant presents a meaningful opportunity for health risk reduction for persons served by public water systems. 42 U.S.C. § 300g-1(b)(1)(A). In its announcement, the EPA concludes that perchlorate does not meet these criteria for regulation.
Emerging Contaminants
New Jersey Adopts Stringent PFAS Drinking Water Rules and Adds Compounds to List of Hazardous Substances
The New Jersey Department of Environmental Protection (NJDEP) recently amended its rules under the New Jersey Safe Drinking Water Act (NJ SDWA) to address per- and poly-fluoroalkyl substances (PFAS). NJDEP adopted the amendments on March 31, 2020, and published them in the New Jersey Register on June 1, 2020. 52 N.J.R. 1165(b). The United States Environmental Protection Agency (EPA) began the process for establishing drinking water standards for certain PFAS compounds in February 2020; however, with these amendments, New Jersey now has some of the most stringent PFAS drinking water requirements in the United States.
Safe Drinking Water Act: EPA to Issue Regulatory Determination for PFOA/PFOS
On February 20, 2020, the U.S. Environmental Protection Agency (EPA) announced its intent to publish a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Publication will initiate a 60-day notice and comment period that represents the first step toward the adoption of Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs) for PFOA and PFOS, two of the best-understood and most common compounds under the umbrella of perfluoroalkyl substances (PFAS).
EPA Seeks Public Input on Adding PFAS to the Toxic Release Inventory
EPA’s first major action under its February 2019 comprehensive Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (previously discussed in detail here) is out. On September 25, EPA sent a request for public input on whether EPA should add “certain PFAS chemicals” to the Toxics Release Inventory (TRI) to the Office of Management and Budget (OMB). EPA issues advance notices of proposed rulemaking to get a sense of public reaction before it initiates an important regulatory change, typically before it has conducted significant research or expended agency resources.
Sean Sullivan Presents at Emerging Contaminants Conference
On April 24, Troutman Sanders partner Sean Sullivan presented during the PFAS and Other Emerging Contaminants Conference hosted by the American Council of Engineering Companies of North Carolina.
Sean’s presentation, “Turning Science into Law: The Process for Setting Health-Based Exposure Limits” explored the Safe Drinking Water Act, the EPA’s PFAS…
California Unfolds PFAS Investigation Plan With Broad Impact on California Dischargers
At a public hearing on March 6, 2019, the California State Water Resources Control Board announced a “Phased Investigation Plan” for perfluoroalkyl substances (PFAS). The Investigation Plan represents a coordinated effort by the Water Board to identify PFAS in discharges and drinking water sources across California. This new initiative leverages the Board’s enforcement and permitting powers to order testing and will proceed in three phases. Under each phase, the Water Board will issue orders to the covered facilities requiring at least one round of testing of their discharge to identify whether PFAS are present.
EPA Releases Multi-Pronged Action Plan for PFAS
On February 14, 2019, EPA announced the release of its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (Action Plan) in an unprecedented series of simultaneous press conferences across all 10 of its Regions. The Action Plan brings together and organizes regulatory, enforcement, and scientific efforts across nearly all of the Agency’s statutory programs, including the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), the Toxic Substances Control Act (TSCA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), and the Resource Conservation & Recovery Act (RCRA). Some of the components of the Action Plan are entirely new, while others represent the continuation or revival of prior initiatives. Below we summarize the highlights of the 60+ page Plan.