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Biden EPA Makes First Moves to Address PFAS in Drinking Water

We don’t need to wait for the confirmation of Michael Regan as the new Administrator of the U.S. Environmental Protection Agency (EPA) to get the first look at how the Biden administration intends to regulate certain per- and polyfluoroalkyl substances (PFAS) chemicals. The agency is moving toward establishing a drinking water standard for PFOA and PFOS and has stated that it is considering avenues for regulating additional groups of PFAS under the Safe Drinking Water Act (SDWA) as well. The SDWA is just one of several statutes EPA is actively considering for additional regulation of PFAS. For example, EPA is considering hazardous substance and hazardous waste designations under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and/or the Resource Conservation and Recovery Act (RCRA).

What Are PFAS?

PFAS are more than 4,700 fluorinated chemicals used in industrial settings and in consumer products. PFAS are human-made compounds that have unique capabilities to provide protection against heat, moisture and other factors that can degrade materials. PFAS vary widely in composition, and the manufacture and use of many PFAS compounds have been phased out in the U.S. Although regulation and industry efforts have succeeded in limiting the prevalence of these compounds, their persistence in the environment continues to present a challenge for industry and regulators.

What Did EPA Do?

On February 22, 2021, EPA announced two actions under SDWA to address PFAS. First, the agency reissued the final regulatory determination to implement a National Primary Drinking Water Regulation (NPDWR) for PFOS and PFOA. The determination was originally issued on the last full day of the previous administration but was captured in the broad effort by the Biden administration to pause regulatory actions that were pending at the time of inauguration. This determination also states that the agency is considering the regulation of additional PFAS chemicals.

Second, EPA revised the fifth SDWA-directed review under the Unregulated Contaminant Monitoring Rule (UCMR 5) to include an additional 29 PFAS chemicals. The proposed Rule, once published in the Federal Register, will be subject to a 60-day public comment period. If promulgated, the Rule will impose data collection obligations on public water systems of a certain size. That data collection, when completed, can serve as part of the underpinning for additional SDWA actions, including adding chemicals to the Contaminant Candidate List and potentially regulating those chemicals under the SDWA. The list of 30 potential contaminants under review at any one time has not typically been so highly focused on one type or family of chemicals. For instance, UCMR 3, issued in 2012 during the Obama administration, studied seven volatile organic compounds, six metals and six PFAS, including PFOA and PFOS. Those compounds were placed on the Contaminant Candidate List, and the February 22 regulatory determination triggers a rulemaking that often results in the establishment of a maximum contaminant level (MCL).

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume XI, Number 55



About this Author

Bonnie Barnett Environmental Lawyer Faegre Drinker

Bonnie Barnett defends clients in large-scale environmental disputes and helps protect them with advice on regulatory compliance and the environmental implications of business and real estate transactions. In addition to her more than 30 years of litigation and advisory experience, she is one of the country’s top Superfund lawyers and is valued for her experience with remediating contaminated sediment sites and helping clients with the allocation of remedial costs. Bonnie is a member of the firm’s board.

Environmental Litigation

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Brandon W. Kirkham Public Policy Strategy & Government Advocacy Faegre Drinker Biddle & Reath Washington, D.C
Principal - Faegre Drinker Consulting

Brandon Kirkham helps clients advance their agendas through integrated public policy strategy and government advocacy. Drawing from two decades at the intersection of highly regulated businesses and government, Brandon partners with clients of varying size and complexity and across industries to develop and implement advocacy strategies that effectively assist clients in responding to legislative and regulatory challenges. He provides strategic advocacy on a broad range of policies of impact across the economy with significant experience assisting clients in managing energy, environment...

Hannah R. Anderson Product Litigation Attorney Faegre Drinker Biddle & Reath Minneapolis, MN

Hannah Anderson collaborates with manufacturers, distributors and retailers to help them meet federal and state compliance mandates, mitigate potential liabilities and manage product litigation practically. She has experience supporting clients at all stages of trial.

Prior Experience

Hannah joined the firm following a summer associate position with legacy firm Faegre Baker Daniels. She previously supported the product liability and environmental group by conducting legal research and drafting accompanying memos. During law school, Hannah worked as a student attorney in her...

Elizabeth M. Casey Litigation Attorney Faegre Drinker Biddle & Reath Philadelphia, PA

Elizabeth Casey assists clients with various aspects of legal proceedings and trial preparation, including legal research and the drafting of motions and other legal memoranda.

Elizabeth clerked for the Honorable Joel H. Slomsky of the United States District Court for the Eastern District of Pennsylvania during the 2018-19 term.

During law school, Elizabeth served as a judicial intern for Judge Slomsky and worked as a law clerk for the United States Environmental Protection Agency in Washington, D.C. She was also a Temple Law and Public Policy Scholar and a teaching assistant...

Amy L. Waite Product Liability & Environmental Attorney Faegre Drinker Biddle & Reath Indianapolis, IN

Amy Waite remains on the pulse of developments in product liability and environmental law, particularly as it pertains to the food and agribusiness space. She focuses her practice on helping clients improve product stewardship and manage liability risk. Her regulatory proficiency is matched only by her agricultural marketing savvy, which she draws on to support clients’ business strategy.

Past Experience

Amy built on her education in agricultural economics with an internship with the Indiana State Poultry Association (ISPA). She went on to support the marketing and...