After working for over a year and reviewing 120,000 comments on the proposed rule, the EPA passed its final regulation regarding PFAS in drinking water. The Safe Drinking Water Act was originally enacted in 1974. The newest regulation restricts the permissible concentrations of per- and polyfluoroalkyl substances (PFAS). PFAS, also known as “forever chemicals” due to the amount of time needed to break them down, can be found in an abundance of products used by Americans daily. These PFAS are used in cleaning products, nonstick pots and pans, most water-resistant fabrics, fire-fighting foam, and many other items. The regulations were signed by the Administrator of the EPA, Michael S. Regan, on April 8, 2024, and are now waiting to be added to the Federal Register.
The regulations will be enforced against public water systems as well as state and local agencies responsible for drinking water regulatory development. In these regulations, the EPA has set Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs). The MCLGs are goals set for each state, local authority, and water supplier, creating a maximum level of PFAS in drinking water at which no known or anticipated adverse effect on humans would occur. MCLGs are not enforceable. MCLs take into account economic and technological feasibility and are enforceable.
In the new regulation, the EPA has set MCLs and MCLGs for six PFAS, which are: perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), and perfluorobutane sulfonic acid (PFBS). In addition to the MCLs and MCLGs, the EPA has implemented an index, which limits the allowable presence of a combination of PFHxS, PFNA, HFPO-DA, and PFBS.
Public water systems, along with state and local agencies responsible for drinking water, have three years from the date that the regulation is published in the Federal Register to begin initial monitoring. The MCLs will go into effect five years after publication. This gives public water systems and targeted agencies until 2029 to address excess levels of specified PFAS before enforcement of the new EPA limits. However, any new systems will have to follow the new regulation once published. Although the EPA expects the cost of implementation to be $1.548 billion per year, it anticipates fewer PFAS-associated illnesses and deaths.
In addition to these regulations, the EPA has proposed a rule to add PFOA and PFOS to the hazardous substances list under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Public commenting is now closed on this proposed rule. Although current regulations attempt to limit exposure to PFAS, the EPA’s Framework for Addressing New PFAS and New Uses of PFAS makes it clear that new regulations will emerge aimed at manufacturing, sales, and distribution of products containing PFAS. With these new and anticipated regulations, manufacturers should look for potential alternative products to avoid the concerns surrounding past and future use of PFAS.
Despite the EPA’s belief that the $1.54 billion costs will be offset by the benefits of fewer illnesses and death, because of the five-year delay before implementation of the MCLs, the costs will outweigh the benefits for the foreseeable future. The EPA’s estimate addresses the costs associated with updating current water systems to meet its regulation but fails to account for increased costs in manufacturing and potential litigation directly or indirectly relating to the new regulation. Litigation expenses could arise over disputes associated with the cost of drinking water source remediation, land application remediation, personal injury, and product liability claims against manufacturers, distributors, and retailers of PFAS-containing products. Manufacturers should include these considerations in their strategic planning moving forward.
This article originally appeared on Freeman Mathis & Gary, LLP.