The United States Environmental Protection Agency ("EPA") on April 10, 2024 issued the first-ever federal regulatory limits on per- and polyfluoroalkyl substances (PFAS) in drinking water. The EPA's PFAS drinking water standards will be accompanied by almost $1 billion in funding for public water utility companies' compliance efforts. Nonetheless, legal challenges focused on the significant costs of implementation and the science are anticipated.
EPA also recently issued Interim Guidance on Destroying and Disposing of Certain PFAS and PFAS-Containing Materials. This updated guidance provides information that managers of PFAS wastes including aqueous film-forming foam (AFFF) can use to evaluate the most appropriate destruction, disposal or storage method among those currently available.
What You Need to Know:
- With this rule, EPA is setting a health based goal of zero for Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonic acid (PFOS) and establishing legally enforceable levels for six (6) PFAS known to occur individually and/or as mixtures in drinking water: PFOA; PFOS; Perfluorononanoic acid (PFNA); Perfluorohexane sulfonic acid (PFHxS); Hexafluoropropylene oxide dimer acid (HFPO-DA or “GenX Chemicals”); and Perfluorobutane sulfonate (PFBS).
- Public water systems will have three years to complete the initial monitoring requirements. They must inform the public of the level of PFAS measured in their drinking water and implement solutions to reduce PFAS in their drinking water to levels below the standards within five years.
Under the new PFAS National Primary Drinking Water Regulation (NPDWR), EPA is setting a Maximum Contaminant Level Goal (MCLG), a non-enforceable health-based goal, for PFOA and PFOS, at zero. This reflects the EPA's conclusion there is no level of exposure to these contaminants without risk of health impacts, including certain cancers.
EPA is setting an enforceable Maximum Contaminant Level (MCL) at 4.0 parts per trillion (ppt) for PFOA and PFOS, individually. For PFNA, PFHxS, and GenX Chemicals, EPA is setting the MCLGs and MCLs at 10 ppt. Because PFAS can often be found together in mixtures, and research suggests these mixtures may have combined health impacts, EPA is also setting a limit for any mixture of two or more of the following PFAS: PFNA, PFHxS, PFBS, and GenX Chemicals.
It is worth emphasizing that these new standards are aggressive; parts per trillion (ppt) has been described as being akin to "grains of sand in an Olympic-size swimming pool" or to "pinch[es] of salt in ten tons of potato chips."
As discussed in prior Saul Ewing Client Alerts and Articles, PFAS are a large class of man-made chemicals that includes PFOA, PFOS and GenX chemicals. PFAS have been used in firefighting foams, protective coatings, such as Teflon, plastic food containers, and stain-resistant garments and carpets. PFAS are mobile and persistent; they bioaccumulate while resisting degradation in the environment (hence the nickname "forever chemicals."). They're also ubiquitous, present in personal care products like shampoo and dental floss. As a result, approximately 98-99 percent of people have PFAS in their bodies, and studies have shown negative health outcomes with low levels of chronic exposure to PFAS. Problematically, PFAS make their way into municipal water supplies.
In the absence of an enforceable federal drinking water standard for PFAS – until now – many states had already begun to regulate PFAS compounds in drinking water (including Maine, Massachusetts, New Jersey and Washington). As a result, there has been a patchwork of regulations and standards in the form of MCLs as well as guidance and notification levels at varying thresholds, which can present operational and compliance challenges for impacted industries.
EPA estimates the costs for public water systems to implement the PFAS NPDWR at approximately $1.5 billion per year. These costs include water system monitoring, communicating with customers, and if necessary, installing and maintaining treatment technologies or obtaining new or additional sources of water. Currently available solutions include granular activated carbon (GAC), ion-exchange, and reverse-osmosis. Research is underway on more technologies for treatment, residual management and destruction.
Public water systems must monitor for the regulated PFAS and, by 2027, complete initial monitoring. Beginning in 2027, water systems will need to tell customers if the utility detects specific PFAS listed in the federal regulation.
Public water systems have five years (by 2029) to implement solutions that reduce PFAS if compliance monitoring shows that drinking water levels exceed the new federal MCLs. Public water systems that have PFAS in drinking water that violates one or more of these MCLs must take action to reduce levels of these PFAS in their drinking water. By 2029, utilities will need to notify the public of a violation of one of the PFAS limits no later than 30 days after the water system learns of it.
EPA is making $1 billion available to states and territories to implement PFAS testing and treatment at public water systems. That money is part of a $9 billion investment made possible by the 2021 Bipartisan Infrastructure Law to fund efforts to mitigate PFAS in water systems.
EPA is holding three informational webinars for communities, water systems, and other drinking water professionals about the final PFAS NPDWR on April 16, April 23, and April 30, 2024, respectively.
What You Need to Know About EPA's Interim Guidance on Destroying and Disposing of Certain PFAS and PFAS-Containing Materials That Are Not Consumer Products
EPA's Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances ("Interim Guidance") provides information that managers of PFAS wastes can use to evaluate the most appropriate destruction, disposal, or storage method among those currently available. This updated document builds on guidance EPA issued in 2020 by incorporating information gathered from new EPA test methods as well as recent findings pertaining to destruction and disposal of PFAS-containing materials in non-consumer settings. It also includes updated screening methods to assess vulnerable populations near PFAS destruction and disposal sites and incorporates comments EPA received on the original document.
The Interim Guidance contains a new technology evaluation framework that enables technology developers to assess emerging innovative destruction and disposal methods. The Interim Guidance also underscores the need to generate and publicly release data to validate whether existing and new technologies may be suitable for larger-scale use. It describes new EPA test methods and improved screening tools to identify and prioritize safeguards for communities located near destruction and disposal facilities and overburdened by pollution.
This Interim Guidance is part of the EPA's PFAS Strategic Roadmap. As part of this initiative, the EPA has established methods to better measure PFAS; added seven PFAS to the list of chemicals covered by the Toxics Release Inventory (TRI); enacted a final rule under the Toxic Substances Control Act (TSCA) to require manufacturers of PFAS and PFAS-containing articles to report information to EPA on PFAS uses, production volumes, disposal, exposures, and hazards; named PFAS as a National Enforcement and Compliance Initiative for 2024-2027; and proposed designating certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
EPA will accept comments on the Interim Guidance for 180 days from the date of the Federal Register notice initiating the public comment period.
