By Jeryl L. Olson, Rebecca A. Davis, Patrick D. Joyce, Scott T. Fenton, Ilana R. Morady, and Craig B. Simonsen
Seyfarth Synopsis: The U.S. Environmental Protection Agency’s (EPA) has announced that it is proposing the first-ever national drinking water standard for six per- and polyfluoroalkyl substances (PFAS) in the latest action under President Biden’s plan to combat PFAS pollution and the EPA PFAS Strategic Roadmap.
Through its proposed rule, EPA seeks to establish legally enforceable levels for six PFAS in drinking water. The proposed rule follows EPA’s prior proposals to designate two PFAS as hazardous substances under CERCLA and to use the Clean Water Act permitting and regulatory programs to enforce cleanup of PFAS pollution in the drinking water. The proposal however is fraught with issues.
While according to the Biden Administration, the proposal is intended to be another step in “EPA’s Strategic Roadmap”, and EPA Administrator Michael S. Regan is touting the proposal as a means to “…provide states with the guidance they need to make decisions that best protect their communities…”, some states have already introduced measures to limit PFAS (at more reasonable levels than proposed by EPA) and while EPA’s proposal ostensibly is intended to build on such existing state initiatives, it is more likely, in current form, to merely stall such initiatives as states struggle to determine how to conform their programs to meet EPA’s new limits.
The proposed new rule creates significant concerns for public water supplies (at present it does not apply to private water supplies or residential wells) as it would mean that if a public water system determines that PFAS exist in drinking water at or above the proposed levels, the existing drinking water system would need to be retrofitted, or alternatively a new drinking water system will need to be installed. Some communities would need to consider switching to a different water source. All options are costly and create challenges for communities already struggling to meet federal drinking water limits. (Note, there are limited funds and grants available to communities under the Infrastructure Law for disadvantaged communities and small communities of less than 25,000 people, but it is unclear how and when those funds may be allocated.) For these reasons, the levels set by EPA will be critically challenged, and are unlikely to survive public notice and comment in their current form because of the cost.
If finalized, the proposal, as detailed in EPA’s FAQs, would regulate PFOA and PFOS as individual contaminants, and will regulate four other PFAS – PFNA, PFHxS, PFBS, and GenX Chemicals – as a mixture. A hearing is to be held on the rulemaking at www.regulations.gov, identified by Docket ID Number: EPA-HQ-OW-2022-0114, on May 4, 2023, at which the public will be invited to provide EPA with verbal comments. For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Environmental Team.