Updated February 26, 2020
Regulating Drinking Water Contaminants: EPA PFAS Actions
The 116th Congress has held hearings and passed legislation
water standards. In 2016, EPA issued Lifetime Health
directing the U.S. Environmental Protection Agency (EPA)
Advisory levels for PFOA and PFOS in drinking water at
and other departments and agencies to take a range of
70 parts per trillion (ppt) separately or combined. EPA
actions to address per- and polyfluoroalkyl substances
developed these advisory levels to protect the most
(PFAS) in drinking water. EPA actions to respond to PFAS
sensitive population groups, with a margin of protection,
contamination under the Safe Drinking Water Act (SDWA)
over a lifetime of daily exposure.
have received significant attention. The National Defense
Authorization Act for FY2020 (NDAA, P.L. 116-92)
Regulating Contaminants Under SDWA
amended SDWA to increase PFAS monitoring and
SDWA authorizes EPA to regulate contaminants in water
authorize appropriations for grants to address PFAS in
provided by public water systems and specifies a multistep
public water supplies, among other PFAS provisions.
process for evaluating contaminants to determine whether a
national primary drinking water regulation is warranted (42
Over the past decade, EPA has been evaluating several
U.S.C. §300g-1). The process includes identifying
PFAS under SDWA to determine whether national drinking
contaminants of potential concern, assessing health risks,
water regulations are warranted for one or more of these
collecting occurrence data (and developing any necessary
substances. On February 20, 2020, EPA announced
test methods), and making determinations as to whether a
preliminary decisions to develop SDWA regulations for the
national drinking water regulation is warranted.
two most frequently detected PFAS, perfluorooctanoic acid
(PFOA) and perfluorooctane sulfonate (PFOS). This In
To make a positive determination to regulate a contaminant,
Focus outlines EPA actions to address PFAS under SDWA
SDWA directs EPA to find the following: (1) a contaminant
and reviews related legislation.
may have an adverse health effect; (2) it is known to occur
or there is a substantial likelihood that it will occur in water
Background
systems at a frequency and at levels of public health
PFAS include thousands of diverse chemicals, some of
concern; and (3) in the sole judgment of the EPA
which have been used for decades in an array of industrial,
administrator, regulation of the contaminant presents a
commercial, and U.S. military applications. The chemical
meaningful opportunity for reducing health risks. Below is
characteristics of PFAS have led to the use of various PFAS
an overview of each step and related EPA efforts regarding
for an array of purposes such as fighting fuel-based fires
the assessment of specific PFAS.
and for processing and manufacturing numerous
commercial products (e.g., stain-resistant and waterproof
Contaminant Selection
fabrics, nonstick cookware, and food containers).
Every five years, EPA is required to publish a list of
contaminants that are known or anticipated to occur in
In 2016, EPA reported that PFOA and/or PFOS were
public water systems and may warrant regulation under the
detected in at least one public water system in 24 states.
act (42 U.S.C. §300g-1(b)). In 2009, EPA placed PFOA and
Four other PFAS were also detected in some systems.
PFOS on the third such contaminant candidate list (CCL 3)
(Historically, PFOA and PFOS were the most produced
for evaluation (74 Federal Register 51850). In November
PFAS, and U.S. manufacturers have phased out their
2016, EPA issued CCL 4, which carried over many CCL 3
production and most uses.)
contaminants, including PFOA and PFOS, for further
evaluation (81 Federal Register 81103).
SDWA provides EPA with several authorities to address
unregulated contaminants in drinking water supplies and
Monitoring for Unregulated Contaminants
sources. As briefly discussed below, these include the
To generate nationwide occurrence data for unregulated
authority to issue health advisories, regulate contaminants
contaminants, SDWA directs EPA to promulgate, every
in public water supplies, and issue enforcement orders in
five years, an unregulated contaminant monitoring rule
certain emergency circumstances.
(UCMR) that requires water systems operators to test for no
more than 30 contaminants (42 U.S.C. §300j-4). EPA
Drinking Water Health Advisories
generally requires monitoring by operators of all public
SDWA authorizes EPA to issue health advisories for
water systems that serve more than 10,000 persons, plus a
contaminants that are not regulated under the act (42 U.S.C.
representative sample of smaller systems. (Roughly, 82% of
§300g-1(b)(1)(F)). Health advisories provide information
the U.S. population receives water from public water
on health effects, testing methods, and treatment techniques
systems that serve more than 10,000 individuals.)
for unregulated contaminants of concern. They also include
nonenforceable levels to help water suppliers and others
In 2012, EPA issued the UCMR 3, requiring roughly 5,000
address contaminants that lack federal (or state) drinking
water systems to monitor for six PFAS—including PFOA
https://crsreports.congress.gov
Regulating Drinking Water Contaminants: EPA PFAS Actions
and PFOS—between January 2013 and December 2015.
contamination of water supplies associated with four sites,
According to EPA, 63 water systems (1.3%) serving an
including three Department of Defense (DOD) sites.
estimated 5.5 million individuals detected PFOA and/or
PFOS at levels above EPA’s health advisory level of 70 ppt
MCLs and Remedial Actions
(separately or combined).
Under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA, or “Superfund”),
Regulatory Determinations
MCLs may be considered in selecting remedial actions for
SDWA requires EPA to make a regulatory determination—
releases of hazardous substances, pol utants, and other
a determination of whether or not to promulgate a national
contaminants (42 U.S.C. §9621(d)). However, CERCLA
primary drinking water regulation—for at least five
establishes liability only for releases of hazardous substances.
contaminants every five years. In selecting contaminants for
No PFAS has been designated as a hazardous substance. In the
regulatory determinations, SDWA directs EPA to prioritize
116th Congress, several bil s (e.g., H.R. 535 and S. 638) would
those that present the greatest health concern while
direct EPA to designate PFAS as hazardous substances under
considering a contaminant’s effects on subgroups that may
CERCLA. The NDAA for FY2020 (P.L. 116-92), Section 316,
be at greater risk of adverse health impacts from exposure
expands DOD responsibility for response actions to include
to a contaminant (e.g., infants, pregnant women).
PFAS and other pol utants or contaminants but does not
establish CERCLA liability for these chemicals. (See CRS
In 2016, EPA included PFOA and PFOS on its “short list”
Report R45986, Federal Role in Responding to Potential Risks of
of contaminants identified for regulatory determinations in
Per- and Polyfluoroalkyl Substances (PFAS).)
CCL 4 (81 Federal Register 81103). On February 20, 2020,
the EPA administrator signed preliminary determinations to
PFAS Action Plan: Drinking Water
regulate PFOA and PFOS, along with preliminary
In February 2019, EPA issued a PFAS Action Plan (EPA
determinations not to regulate six other chemicals. EPA is
823R18004) that identifies the agency’s efforts to address
required to publish a preliminary determination and seek
PFAS under several laws. Among other actions, EPA has
public comment before finalizing a determination.
developed analytical test methods to support UCMR
monitoring of more PFAS and at lower levels. (EPA has
Developing Drinking Water Regulations
validated test methods for 29 PFAS.) The agency is also
Once EPA makes a final determination to regulate a
developing PFAS toxicity information and providing more
substance, SDWA prescribes a schedule for promulgating
information about treatment techniques and costs.
regulations. EPA is required to propose a rule within 24
months and promulgate a drinking water regulation within
Legislation in the 116th Congress
18 months after the proposal. EPA may extend the deadline
In the 116th Congress, numerous bills would address PFAS
for up to nine months (42 U.S.C. §300g-1(b)(1)).
through various authorities and agencies. Enacted on
December 20, 2019, the FY2020 NDAA (P.L. 116-92)
For each regulation, EPA is required to establish a
includes multiple PFAS provisions, primarily regarding
nonenforceable maximum contaminant level goal (MCLG)
DOD, but several involve EPA and other federal agencies.
at a level at which no known or anticipated adverse health
Title LXXIII includes several PFAS drinking water
effects occur, with an adequate margin of safety. For each
provisions. Section 7311 requires EPA to add to UCMR 5
contaminant covered by the regulation, EPA generally
all PFAS or classes of PFAS with validated test methods.
specifies a maximum contaminant level (MCL)—an
Section 7312 authorizes, within the Drinking Water State
enforceable standard applicable to public water suppliers.
Revolving Fund, a grant program for water systems to
SDWA directs EPA to set the MCL as close to the MCLG
address emerging contaminants with an emphasis on PFAS.
as is “feasible” using best available technology or other
Section 7312 authorizes appropriations of $100 million
means available, taking costs into consideration. SDWA
annually for FY2020-FY2024 for this purpose.
requires that regulations include analytical methods and
feasible treatment methods that public water systems can
On January 10, 2020, the House passed H.R. 535, a broad
use to monitor for contaminants and comply with the MCL.
PFAS bill with several SDWA amendments. The bill would
They also include monitoring and reporting requirements
direct EPA to promulgate drinking water regulations for
(42 U.S.C. §300f(1), §300g-1).
PFAS (with standards for at least PFOS and PFOA) within
Emergency Powers
two years. H.R. 535 would establish a drinking water
regulatory process and schedule specifically for PFAS. It
SDWA authorizes EPA to take actions it deems necessary
would direct EPA to issue a health advisory within a year of
to abate an imminent and substantial endangerment to
finalizing a toxicity value for a single PFAS or class of
public health from a contaminant (regulated or unregulated)
PFAS. Among other bills, several would direct EPA to
that is present in or likely to enter a public water system or
issue final or interim regulations for all or some PFAS,
an underground source of drinking water (42 U.S.C. §300i).
authorize grants for systems and/or households to treat
This authority is available if state and local authorities have
PFAS, and/or increase PFAS monitoring. For further
not acted. EPA actions may include issuing orders requiring
discussion of PFAS drinking water bills and EPA actions,
persons who caused or contributed to the endangerment to
see CRS Report R45793, PFAS and Drinking Water:
provide alternative water supplies or to treat contamination,
Selected EPA and Congressional Actions.
among other actions. Since 2002, EPA has used this
authority to require responses to PFOA and/or PFOS
Mary Tiemann, Specialist in Environmental Policy
Elena H. Humphreys, Analyst in Environmental Policy
https://crsreports.congress.gov
Regulating Drinking Water Contaminants: EPA PFAS Actions
IF11219
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