April 28, 2020

Environmental Protection Agency Extends PFOA/PFOS Comment Deadline to June 10, 2020

Holland & Knight Energy and Natural Resources Blog
Dianne R. Phillips
Energy and Natural Resources Blog

On April 17, U.S. Environmental Protection Agency (EPA) Assistant Administrator for Water David Ross issued a notice indicating the comment period for EPA's Preliminary Regulatory Determinations for Contaminants on the Fourth Drinking Water Contaminant Candidate List will be extended an additional 30 days from May 11, 2020, to June 10, 2020. EPA announced its proposed decision to regulate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) in drinking water on Feb. 20. It was published in the Federal Register on March 10 and docketed on www.regulations.gov as EPA-HQ-OW-2019-0583. However, since then, only a handful of comments have been docketed.

The EPA is following the Safe Drinking Water Act evaluation and rulemaking process for eight currently unregulated contaminants, including PFOA and PFOS. Thus, the EPA seeks comment on the preliminary determination to regulate two contaminants (PFOA and PFOS) and to not regulate six contaminants (1,1-dichloroethane, acetochlor, methyl bromide, metolachlor, nitrobenzene and RDX). The EPA is also seeking information and comment on other per- and polyfluoroalkyl substances (PFAS) and potential regulatory approaches. This is the beginning of the regulatory process for which public comment is sought and describes the EPA's preliminary determinations concerning the three statutory criteria which must be met to proceed to the next phase: 1) the existence of adverse health effects, 2) the occurrence and frequency at levels of public health concern and 3) the existence of a meaningful opportunity for health risk reductions.

The entire process to reach a final regulatory decision often takes years and requires assembly of a substantial amount of data and analyses. For example, as described in an earlier blog post, it was over a decade between EPA's preliminary determination and its proposal for a final rule for the emerging contaminant, perchlorate, which was issued last year. Therefore, the EPA is also seeking comment and information concerning other PFAS compounds and regulatory approaches. The Federal Register publication provides an overview of what is identified to date and ways in which the EPA is seeking additional information. This presents a significant comment opportunity for all stakeholders.

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