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May 2, 2016

EPA Likely to Issue Soon PFOA Drinking Water Health Advisory

Bergeson & Campbell, P.C.

Firm clients and friends with interests in perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), and other perfluorinated chemicals (PFCs) are likely aware that the U.S. Environmental Protection Agency (EPA) is expected to issue by mid-May or so new guidance on safe drinking water levels for these chemicals. As EPA and a handful of states continue to address elevated levels of lead in drinking water, EPA Administrator McCarthy has made clear in various meetings over the past several weeks that while lead levels are an EPA priority, PFCs are also among EPA’s highest drinking water priorities and that EPA action can be expected shortly.

EPA’s provisional health advisories for PFOA and PFOS are set forth in a document EPA issued on January 8, 2009. Based on data and analysis conducted at that time, EPA determined the health guideline levels for PFOA and PFOS are 0.4 µg/L (400 parts per trillion (ppt)) and 0.2 µg/L (200 ppt), respectively. More recently, elevated levels of PFCs have been identified in New York, New Hampshire, and Vermont. Earlier this year, EPA set an action level for PFOA of 100 ppt for drinking water in the Town of Hoosick and the Village of Hoosick Falls, New York. The State of Maine set an action level of 100 ppt for PFOA, and the State of Vermont went further and set a health advisory level for PFOA at 20 ppt for drinking water. The Vermont Agency of Natural Resources Department of Health also hosts a robust website that contains detailed Q&As on PFOA and well water testing results. The variation among the health advisory and action levels for PFCs is the source of considerable confusion, a point that undoubtedly is pressuring EPA to revisit the 2009 provisional health advisory levels.

The Vermont Congressional delegation (Senators Patrick Leahy (D) and Bernard Sanders (D) and Representative Peter Welch (D)) sent a letter dated April 19, 2016, to Senators James Inhofe (R-OK) and Barbara Boxer (D-CA) and Representatives Fred Upton (R-MI) and Frank Pallone (D-NJ) urging quick Congressional action on reform of the Toxic Substances Control Act (TSCA). Interestingly, the Vermont delegation cited PFOA’s presence in drinking and surface water in the Vermont communities of North Bennington, Bennington, and Pownal as evidence of TSCA’s failure to regulate effectively existing chemicals as PFOA is among the tens of thousands of chemicals grandfathered under TSCA when it was enacted in 1976. The letter made a strong pitch for minimal or no preemption of state action, and specifically urged reliance upon the principles outlined in a January 2016 letter from twelve state Attorneys General.


Stakeholders with interests, however attenuated, in PFOA, PFOS, and other PFCs will want to be prepared to address the consequences that will arise from EPA’s issuance of updated health advisories for PFCs. Given the downward trend in more recent guidelines, including EPA’s 100 ppt action level for the Town of Hoosick and Village of Hoosick Falls, New York, it is virtually certain the new health advisory values will be more stringent and thus likely to involve a great number of drinking water sources and the communities they serve. The implications of these new values are extensive, and one need only review the Vermont Department of Health website to get a sense of the enormity of the implications for consumers regarding drinking water, showering, washing dishes, doing the laundry, and related domestic activities. Stakeholders will need to develop comprehensive communication strategies to ensure new testing information and any new health advisory values are developed, explained, and managed responsibly and accurately without causing undo alarm.