Legislation approved by the House Energy and Commerce Committee on November 20 would require EPA to promulgate a national primary drinking water regulation for two per- and polyfluoroalkyl substances (PFAS) – PFOA and PFOS – within two years, while also establishing a new expedited process through which the agency would have to develop new drinking water regulations for additional PFAS in the future. This call for expedited rulemaking under the Safe Drinking Water Act (SDWA) was generally supported by leaders of both parties on the committee, and followed this summer’s Senate passage of separate legislation that emerged from that chamber’s Environment and Public Works (EPW) Committee. In sum, the broad support for establishing a unique SDWA regulatory process for PFAS chemicals could represent Congress’ first movement toward a larger overhaul of how EPA regulates contaminants under SDWA in the coming years.
As approved by the Energy and Commerce Committee, an amended version of the PFAS Action Act (H.R. 535) would make a number of changes to how EPA regulates chemicals in the PFAS family. Aside from requiring the agency to finalize a drinking water regulation for PFOA and PFOS within two years, the measure would further:
- Require the next round of contaminant monitoring under the Unregulated Contaminant Monitoring Rule to include all unregulated PFAS that have a validated drinking water measurement method, in addition to the maximum of 30 unregulated contaminants that may also be subject to water utility screening;
- Require EPA to make a regulatory determination for any PFAS that is listed on EPA’s Contaminant Candidate List within 18 months of the substance’s addition to the list; and
- Require EPA to follow an expedited timetable for proposing and promulgating national primary drinking water regulation for any PFAS that receives a positive regulatory determination in the future. Any such regulation related to PFAS would have to be “protective of subpopulations at greater risk,” like infants and pregnant women.
These requirements represent a departure from the processes and timelines that presently apply to other contaminants considered for regulation under SDWA. For example, current law requires EPA to make a determination on whether to regulate at least five contaminants on the Contaminant Candidate List every five years – and does not set any hard deadlines for making determinations on particular types of contaminants in the manner that H.R. 535 would for PFAS. Further, when EPA currently makes a decision to regulate a contaminant in drinking water, it must propose a regulation within 24 months and promulgate a final regulation after another 18 months following collection of public comment. H.R. 535 would shorten the overall process for regulations relating to PFAS by 12 months.
H.R. 535 would also reduce EPA’s discretion on when to issue drinking water health advisories related to PFAS, as the agency would be newly required to issue an advisory whenever it finalizes a toxicity value and a validated testing procedure for a PFAS, unless the PFAS is unlikely to occur in drinking water at a “sufficient frequency.”
Many of these provisions are similar to language the Senate EPW Committee approved in June as part of its own bipartisan legislation to address PFAS, and which ultimately passed the upper chamber as a piece of a broad defense policy bill. However, House Energy and Commerce Committee Republicans also offered their own proposal to facilitate SDWA’s regulation of PFAS during this month’s markup, with many provisions closely resembling those supported by the Democrats. While the GOP proposal failed, it nevertheless indicated that congressional Republicans are not wed to defending the SDWA regulatory process now in place.
Some congressional Democrats have long disliked the SDWA regulatory process enacted as part of the law’s 1996 overhaul, complaining that EPA has not regulated a new drinking water contaminant – from proposal to finalization – since the 1996 law was enacted. Some lawmakers have suggested a desire to reform the process, but the PFAS legislation marks the first time that legislation to do so, albeit for one particular class of contaminants, has gained bipartisan and bicameral traction. Going forward with the PFAS precedent in place, lawmakers may look to propose additional unique SDWA processes and deadlines for additional emerging contaminants or to consider broader reforms to the 1996 SDWA amendments.