As reported on our blog in June, the Environmental Protection Agency unveiled new drinking water (HA) health advisories for PFAS contaminants. Specifically, the advisories drastically reduced the acceptable levels of PFOA and PFOS in water from 70 parts per trillion (set in 2016) to 0.004 parts per trillion for PFOA and 0.02 parts per trillion for PFOS.
These new tips, however, are already under attack. Last week, a leading trade association filed a petition challenging these new HAs.
The petition was filed in the US Court of Appeals for the DC Circuit (case number 22-1177) pursuant, in part, to sections 1448(a)(1) and 1448(a)(2) of the Safe Water Act. Drinking Water (“SDWA”) – and Rule 15 of the Federal Rules of Appellate Procedure – requesting “revision of Respondent EPA’s Lifetime Health Advisories for Four Perfluoroalkyl Substances”, and specifically focusing on HAs for PFOA and PFOS. (The other two chemicals are subject to a separate challenge).
The petition ultimately seeks to vacate EPA’s interim HAs for PFOA and PFOS and remand the matter to EPA for “further action consistent with the SDWA.”
The petition calls the EPA’s new advisories “scientifically flawed” and “procedurally inappropriate interim health advisories” that set “extremely low standards for PFOA and PFOS in drinking water.” Specifically, the petition states that for PFOA, the level set is “1,000 times below the lowest level that testing methods can detect.” The petition also states that one part per trillion “is equal to one drop of water in 20 Olympic-sized swimming pools” and that one part per quadrillion “is equal to one drop of water in 1,000 Olympic-sized swimming pools, or 1. second in about 31.7 million years.”
In striking down the advisors as “temporary,” the petition says the HAs suffer procedural and substantive errors in violation of the SDWA and the Administrative Procedure Act.
The alleged errors in the petition are:
(1) “Interim” HAs do not comply with SDWA §1412(b)(3)(A), which requires “the use of the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices.
(2) HAs ignore SDWA § 1412(b)(3)(B), which mandates that “Agency communication of public health effects and risk be comprehensive, informative, and understandable.”
(3) “EPA improperly bypassed the regulatory process to establish an interim national major drinking water regulation at SDWA § 1412(b)(1)(D),” in violation of “relevant procedural requirements.”
(4) the HAs are arbitrary and capricious, based on “flawed science,” and are “inconsistent with the concurrent actions EPA has taken regarding screening levels for PFOA and PFOS.”
The petition argues that “EPA knowingly published inaccurate health advisories” because EPA had previously “made clear” in webinars “that the toxicity values on which the health advisories are based” will change as a result of work to address [Science Advisory Board] recommendations.” The petition further states that the HAs are referred to as “interim” because EPA “knows that its health advisories are not set at a scientifically defensible level” and that the SDWA “does not contain any provision or concept regarding an advisory.” “temporary” health.
In short, the petition argues that EPA’s action “appears to be a disguised attempt to adopt an interim national major drinking water regulation under SDWA §1412(b)(1)(D) without undertaking the process of right.” A drinking water standard, if set at the same levels as the “interim” health advisories, the petition argues, would be “impossible to implement or enforce, as those levels are well below any known technical limits of detection established by EPA’s validated test methods.”
We will keep you updated on this challenge and other important events related to PFAS.
