PFAS Breaking News: Regulating to Zero
EPA Proposes Federal Drinking Water Standards for Forever Chemicals, Further State Regulations and Cleanup Liabilities Won’t Be Far Behind
Earlier today, the U.S. Environmental Protection Agency (EPA) announced the proposed rule for the nation’s very first drinking water standards for per- and polyfluoroalkyl substances (PFAS), the infamous “forever chemicals” found in attention- grabbing headlines day after day. For example, it was hard to miss the news about the orange juice lawsuit around the end of 2022.
To Catch You Up
PFAS are a class of thousands of manmade chemicals used on a global scale in many industries and many consumer products. The water, stain, and heat resistant chemicals do not naturally break down, so they are pervasive in the environment. Concerns about adverse health effects, such as cancer, reproductive complications, liver disease, and others, have been increasing for more than 20 years and EPA has been heavily criticized for failure to establish a federally enforceable drinking water standard.
Today’s Groundbreaking Announcement
In this historic move, the EPA proposes regulating six types of PFAS chemicals – PFOA, PFOS, PFNA, PFHxS, PFBS, and GenX – under the federal Safe Drinking Water Act. If finalized, the regulation will require public water systems to monitor for the six chemicals and, if any exceedances of their respective drinking water standards are detected, remove the contamination.
- EPA is proposing a Maximum Contaminant Level (MCL) of 4 parts per trillion (ppt) for PFOA and PFOS, as individual chemicals. This astronomically low concentration matches EPA’s Fifth Unregulated Contaminant Monitoring Rule (UMCR5), in which EPA determined 4 ppt is the lowest concentration the chemicals can be reliably measured by laboratories.
- EPA is proposing to regulate the other four chemicals – PFNA, PFHxS, PFBS, and GenX – as a class. Instead of a set concentration amount, the proposed rule defines a Hazard Index calculation, which will be used to determine if the combined levels of these chemicals pose a potential risk.
EPA is also proposing a Maximum Contaminant Level Goal (MCLG) for PFOA and PFOS of zero. The MCLG is a health-based goal, not an enforceable standard, as opposed to the MCL, which has a feasibility component and is enforceable. Although an MCLG of zero is not enforceable, it does mean that EPA is regulating with the goal of reaching zero. As laboratory analytical methods and technologies improve and PFOA or PFOS can be reliably detected at concentrations below 4 ppt, if the rule is finalized as drafted today, we could see the enforceable standards ratchet down in coming years.
State Regulations and Cleanup Liabilities
While the direct impact of the proposed rule, is limited to public water systems, this major regulatory action is only one piece in the massive whole-of-agency approach in EPA’s 2021 PFAS Strategic Roadmap. As outlined in the November 2022 A Year of Progress Under EPA’s PFAS Strategic Roadmap, EPA is steadily marching forward with studying and regulating PFAS. In particular, be on the lookout for the final rule designating PFOA and PFOS as hazardous substances under CERCLA in coming months, triggering Superfund liabilities for both chemicals and driving strict cleanup requirements on federal and state levels.
On the state level, if the rule is finalized, environmental and health agencies will also need to adopt or lower existing drinking water standards to a level no less stringent than the federal standard, meaning the federal standard sets a new bar inching both federal and state standards closer to zero.
The comment period will be for 60 days after the date the proposed rule is published in the Federal Register. Docket ID No. EPA-HQ-OW-2022-0114 at https://www.regulations.gov.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.