About Dan Askenaizer

During the first week in May 2024 EPA released two memos regarding FY 2024 Drinking Water State Revolving Fund (DWSRF) lead service line replacement funding allotments to individual States.

The first memo (fy24-bil-lslr-allotments-memorandum_may-2024) is from EPA’s Office of Water to EPA’s Regional Offices and presents the FY 2024 Drinking Water State Revolving Fund (DWSRF) lead service line replacement funding allotments to individual States.  The source of the funding is the 2021 Infrastructure Investment and Jobs Act (also known as the Bipartisan Infrastructure Law, BIL).    The FY 2024 allotments are based on the updated 7th Drinking Water Infrastructure Needs Survey and Assessment (DWINSA).  Based on information collected in the updated DWINSA, EPA estimates the cost to replace all lead service lines nationally to be “$50 billion to $80 billion.”  The BIL provided $15 billion for lead service line replacement. The total FY 2024 allotment is $3 billion.

The second memo (implementing-lslr-projects-funded-by-the-dwsrf) is from EPA’s Office of Groundwater and Drinking Water to EPA’s Regional Offices regarding “Implementing Lead Service Line Replacement Projects Funded by the Drinking Water State Revolving Fund.”   The memo describes “….programmatic requirements for full lead service line replacement and details exceptions; provides recommended strategies on LSL identification and LSLR planning and design; identifies best practices for risk mitigation when an LSLR is conducted; and emphasizes the importance of public notifications during projects. This memo stipulates new requirements for agreements signed after August 1, 2024.”

In the May 8, 2024 Federal Register (Fed Reg_PFAS as CERCLA Haz Waste_2024-05-08), EPA published the final rule designating PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, known as Superfund).

Link to April 17, 2024, AWWA article on the legislation introduced regarding designation of PFOA and PFOS as CERCLA hazardous substances:

https://www.awwa.org/AWWA-Articles/bipartisan-legislation-to-protect-water-utilities-ratepayers-from-pfas-cleanup-costs-introduced-in-us-house-of-representatives#:~:text=%E2%80%9CWater%20utilities%20and%20their%20ratepayers,said%20AWWA%20CEO%20David%20LaFrance.

Background. In September 2022, EPA published a proposal to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Lability Act (CERCLA, known as Superfund). CERCLA authorizes EPA to designate compounds as hazardous that “may present substantial danger to the public health or welfare or the environment.”  Public comment deadline was November 7, 2022.   In April 2024, EPA posted a copy the pre-publication Federal Register notice with the final determination to designate PFOA and PFOS as hazardous substances under CERCLA.

In the April 26, 2024 Federal Register (Federal Register_Final PFAS MCLs_2024-04-26) EPA published the final Maximum Contaminant Levels (MCLs) for PFAS (link to Federal Register is presented below).  The final MCLs will be effective on June 25, 2024.

Link to Federal Register

2024-07773.pdf (govinfo.gov)

EPA posted a copy the pre-publication Federal Register notice with the final determination to designate PFOA and PFOS as hazardous substances under CERCLA (pre-publication_final-rule-cercla-pfoa-pfos-haz-sub).  Also, here is a link to an EPA memo “PFAS Enforcement Discretion and Settlement Policy Under CERCLA.” (pfas-enforcement-discretion-settlement-policy-cercla)

In addition to the text in the Regulatory Update below that was copied from AWWA’s public comments on the proposal, here is a link to an AWWA Statement Released two days ago:

https://www.awwa.org/AWWA-Articles/bipartisan-legislation-to-protect-water-utilities-ratepayers-from-pfas-cleanup-costs-introduced-in-us-house-of-representatives#:~:text=The%20American%20Water%20Works%20Association,(CERCLA)%20for%20per%2Dand

On April 17, 2024, the State Water Resources Control Board (SWRCB) voted to adopt the final CrVI MCL of 10 µg/L.  DDW staff indicated the next step would be to submit information to the California Department of Finance, and then submit the final regulation to the Office of Administrative Law (OAL) no later than June 15, 2024.  If all proceeds according to schedule, the effective date of the CrVI MCL would be October 1, 2024.

Title 22 regulations (section 64432 (b)) states, “Unless directed otherwise by the State Board, each community and nontransient-noncommunity water system shall initiate monitoring for an inorganic chemical within six months following the effective date of the regulation establishing the MCL.”

In the April 16, 2024 Federal Register (Fed Reg_PFAS Destruction_EPA Guidance_2024-04-16), for public review and comment the Environmental Protection Agency (EPA) announced the availability of updated Guidance for PFAS destruction and disposal.  EPA is requesting public comments by October 15, 2024.  Below is text copied from the enclosed Federal Register notice:

The National Defense Authorization Act for Fiscal Year 2020…..”directs the U.S. Environmental Protection Agency (EPA) to publish interim guidance on the destruction and disposal of perfluoroalkyl and polyfluoroalkyl substances (PFAS) and materials containing PFAS and to update the guidance at least every three years, as appropriate. The EPA is releasing an update to the December 20, 2020, interim guidance for public comment. The updated guidance builds on information pertaining to technologies that may be feasible and appropriate for the destruction or disposal of PFAS and PFAS-containing materials. The 2024 interim guidance also identifies key data gaps and uncertainties that must be resolved before the EPA can issue more definitive recommendations about PFAS destruction and disposal technologies.”

Link to download copy of the Interim Guidance:

https://www.epa.gov/system/files/documents/2024-04/2024-interim-guidance-on-pfas-destruction-and-disposal.pdf

Proposal. In September 2022, EPA published a proposal to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Lability Act (CERCLA, known as Superfund). Public comment deadline was November 7, 2022.  Following a review of public comments, on December 6, 2023, EPA submitted the final rule to designate PFOA and PFOS as hazardous substances to the Office of Management and Budget (OMB) for review.  As of April 15, 2024 the final rule is no longer under review at OMB.

CERCLA authorizes EPA to designate compounds as hazardous that “may present substantial danger to the public health or welfare or the environment.” Designating compounds as hazardous substances can lead to cleanup of contaminated sites.  In March 2023 EPA held two “listening sessions” regarding “enforcement discretion and settlement policy to the extent that PFAS cleanup enforcement efforts occur under CERCLA.”

Public Comments.  A number of public comments raised concerns about the potential impacts on drinking water and wastewater facilities.  On November 7, 2022, the American Water Works Association (AWWA) submitted public comments to EPA on the proposal.  Copied below are sections from AWWA’s comment letter.

“AWWA is concerned that the Proposal imposes significant costs and long-term liability on drinking water and domestic sewage treatment facilities (herein referred to collectively as water systems) and threatens to compound financial burdens on water systems that are, or under a forthcoming rule will be, protecting public health through drinking water treatment of PFOA and PFOS. These burdens will be directly felt by the water systems’ ratepaying customers and felt most acutely by those living in environmental justice communities.”

“While the Proposal does not list drinking water systems as “potentially affected entities” this Proposal could impose liability on the nearly 144,000 drinking water systems in addition to 19,000 domestic wastewater treatment systems across the United States, given the widespread presence of PFOA and PFOS in the environment (EPA, 2022a; EPA, 2022b). This liability will cause waste management costs for water systems to increase, which may have upwards of a $3.5 billion annual impact (Hazen & Sawyer, 2022).”

“Those costs will have a direct impact on our members and their customers. The Agency, in press releases and public outreach meetings, has signaled an interest in working to address equity concerns for water systems and other similarly innocent parties financed through ratepayers and taxpayers as it addresses PFAS-related concerns (EPA, 2022c; EPA, 2022d). As a key stakeholder representing members working on the frontlines of these pressing issues, AWWA appreciates the Agency shares these concerns. AWWA writes to explain why the Proposal will negatively impact water systems in a way that is not consistent with the Proposal’s objectives or the EPA’s stated concerns.”

Source: AWWA Letter to Barry Breen, Acting Assistant Administrator, Office of Land and Emergency Management, EPA.  “Comments on Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances (Docket ID No: EPA-HQ-OLEM-2019-0341).”  November 7, 2022.

On April 10, 2024, EPA released a pre-publication version of the Federal Register with final Maximum Contaminant Levels (MCLs) for PFAS.  Once published in the Federal Register, the rule will be in effect within 60 days.

Link to website with pre-publication version of the Federal Register and supporting documents and Fact Sheets.

https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas

Here are some highlights from the pre-publication version of the Federal Register with the final PFAS MCLs:

1. MCLs for PFOA and PFOS are set at 4.0 ng/L.  These are the same as proposed in March 2023.
2. The Hazard Index (HI) MCL is 1.0 and is calculated using results for the following four PFAS: PFBS, PFHxS, PFNA, and HFPO-DA.  This is the same as proposed in March 2023, however, EPA has included a requirement that compliance with the HI must be based on at least two of the four PFAS being detected.
3. EPA has set MCLs at 10 ng/L for three of the four PFAS included in the HI calculation (PFHxS, PFNA and HFPO-DA).  These are new MCLs, not included in the March 2023 proposal.
4. EPA is not setting an MCL for PFBS.
5. The final rule makes a distinction between the “initial monitoring period” and the “compliance monitoring period.”
6. The initial monitoring must be completed within 3 years of publication of the rule in the Federal Register (i.e., 2027).
7. Initial monitoring is four quarterly samples for all surface water systems and for groundwater systems serving a population over 10,000.  Initial monitoring for groundwater systems serving less than 10,000 is two samples, collected five to seven months apart.  Samples are collected at point of entry to the distribution system.
8. Results collected after January 1, 2019, can be used to meet the initial monitoring requirements.
9. Monitoring and reporting violations can be assessed three years after publication in the Federal Register.
10. Compliance monitoring begins three years after publication in the Federal Register.
11. Compliance is based on a running annual average of quarterly samples.
12. MCL violations requiring public notification will not be assessed until five years after publication in the Federal Register (i.e. 2029). EPA has extended the deadline by two years to comply with the MCLs, In the March 2023 proposal, water systems needed to be in compliance with the MCLs three years after publication in the Federal Register. In the Federal Register preamble, EPA encourages State primacy agencies to require public notification, if appropriate, if a water system exceeds an MCL prior to the 2029 compliance deadline.
13. EPA has increased the “trigger levels” to one-half of the MCLs.  In the March 2023 proposal, the trigger levels were set at one-third of the MCLs.  If a system is on reduced monitoring, exceeding a trigger level will require increase frequency of sample collection to quarterly.

EPA will hold three one-hour briefings on the final rule.  EPA’s description of each webinar, dates, times, and links to register are presented below.

1. General Public Overview.  April 16, 2024, 2:00 to 3:00 pm (EDT)

https://www.eventbrite.com/e/general-public-webinar-on-epas-final-pfas-npdwr-tickets-863709838377?aff=oddtdtcreator

1. Water Sector Professional Technical Over.  April 30, 2024, 2:00 to 3:00 pm (EDT)

https://www.eventbrite.com/e/drinking-water-professional-community-webinar-on-epas-final-pfas-npdwr-tickets-863734211277?aff=oddtdtcreator

1. Small systems Webinar, 2:00 to 3:00 pm (EDT)

https://www.epa.gov/water-research/small-drinking-water-systems-webinar-series

In April 2024, the California Office of Environmental Health Hazard Assessment (OEHHA) published final Public Health Goals (PHGs) for PFOA and PFOS.  OEHHA’s notice of adoption of the final PHGs is enclosed.

The final PHGs are:

PFOA – 0.007 ng/L

PFOS – 1 ng/L

Link to OEHHA Press Release:

https://oehha.ca.gov/water/press-release/press-release-water/california-adopts-health-protective-goals-forever-chemicals

Link to OEHHA Technical Support Document for the final PHGs:

https://oehha.ca.gov/media/downloads/air/public-health-goal-document/pfoapfosphgfinaldraft040524.pdf

Link to OEHHA’ Response to Peer Review and Public Comments

https://oehha.ca.gov/media/downloads/water/response-comments/pfoapfosresponsestocomments040424.pdf

Background

In July 2021, OEHHA proposed for public review draft PHGs for PFOA (0.007 ng/L) and PFOS (1 ng/L).  In February 2022, as required, a Peer Review panel submitted review and comments on the draft PHGs (the Panel provided lots of comments, but generally was in agreement with OEHHA’s conclusions).  In July 2023 OEHHA released a second draft of the PHGs for PFOA and PFOS for public comment. There was no change in the proposed PHG values.

In the March 14, 2024, edition of the Centers for Disease Control and Prevention (CDC) Morbidity and Mortality Weekly Report, CDC published an article titled “Surveillance of Waterborne Disease Outbreaks Associated with Drinking Water — United States, 2015–2020.”

Text copied from Summary Results section: “During 2015-2020, public health officials from 28 states voluntarily reported 214 outbreaks associated with drinking water and 454 contributing factor types.  The reported etiologies included 187 (87%) biofilm associated, 24 (11%) enteric illness associated, two (1%) unknown, and one (<1%) chemical or toxin.  A total of 172 (80%) outbreaks were linked to water from public water systems, 22 (10%) to unknown water systems, 17 (8%) to individual or private systems, and two (0.9%) to other systems; one (0.5%) system type was not reported.  Drinking water-associated outbreaks resulted in at least 2,140 cases of illness, 563 hospitalizations (26% of cases), 88 deaths (4% of cases).  Individual or private water systems were implicated in 944 (43%) cases, 52 (9%) hospitalizations, and 14 (16%) deaths.

Nontuberculous mycobacteria and Legionella were identified as the “…predominant causes of hospitalizations and deaths from waterborne- and drinking water-associated disease.”

Link to CDC article:

https://www.cdc.gov/mmwr/volumes/73/ss/ss7301a1.htm#:~:text=Drinking%20water%2Dassociated%20outbreaks%20resulted,and%2014%20(16%25)%20deaths.

Following the list of references there are a series of Tables and Figures.  Highlight of some of the tables: Tables 1 through 6 present the waterborne outbreaks by State for each year, 2015 through 2020.  Table 7 ranks the various causative agents, type of water system and type of source (groundwater vs surface water).  Figure 1 presents a map of the US, with individual States presented in different categories of the number of waterborne outbreaks during 2015 through 2020.