On June 15, 2022, EPA issued four drinking water health advisories for per- and polyfluoroalkyl substances (PFAS) that set levels so low that it amounts to a finding that no level of PFAS in drinking water is acceptable.
As background, EPA sets drinking water health advisories for certain chemicals, many of which are unregulated by conventional environmental laws, to inform drinking water providers and the public regarding contaminants that could cause health effects.
PFAS are a group of manufactured chemicals that have been used in industry and consumer products since the 1940s. There are thousands of different PFAS, some of which have been more widely used and studied than others. The defining characteristic of PFAS is that they are very stable compounds that are highly resistant to water and oils. As such, they have been used in non-stick cookware, water-repellent clothing, stain resistant fabrics and carpets, some cosmetics, firefighting foams, and products that resist grease, water, and oil.
The chemicals’ stability also means they are ‘persistent,’ meaning they break down very slowly and persist in the environment for a very long time, often years or decades. This persistence also means they can accumulate in people, animals, and the environment over time. Studies have shown that over 90% of all people in the United States have detectable levels of PFAS in their blood.
Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) are two of the most widely used and studied chemicals in the PFAS group. EPA established its first Lifetime Health Advisories for PFOA and PFOS in 2016 at 70 parts per trillion.
Since then, PFAS has garnered increased attention by the public and policy makers, and its regulation enjoys bipartisan Congressional support. In response, EPA has developed a strategic plan to address PFAS, which will eventually include designation of certain PFAS as a hazardous substance.
In its most recent health advisories, EPA set the level for four PFAS, including PFOA and PFOS at levels so low they are simply not detectable. For example, EPA has set the health advisory for PFOA at 4 parts per quadrillion, which is approximately 17,000 times lower than its 2016 Lifetime Health Advisory level. By way of analogy, one part per trillion is the equivalent of one drop of water in an Olympic-sized swimming pool. While the ability to detect low levels of PFAS has improved over recent years, no test method currently available can reliably detect PFAS at this level. As such, the net result of EPA’s new guidance is that any detectable level of PFAS in drinking water can be considered adverse to public health.
While EPA health advisories are not enforceable, these advisories will almost certainly increase pressure on drinking water providers to begin testing for PFAS more broadly. Considering the pervasive use of PFAS in all manner of industrial and consumer products, we expect PFAS detections in public drinking water supplies to increase, along with potential increased costs to remove PFAS from drinking water. Some or all of these costs may be passed on to rate payers. In addition, parties may be looking to recoup these costs from someone else, whether from insurers, manufacturers, or users of PFAS products.
EPA’s actions are part of a planned expansion of PFAS regulation over the coming years. In turn, this may increase legal wrangling and litigation as businesses look to recoup costs associated with new compliance requirements and PFAS remediation liabilities.
The expansive use of PFAS means many entities may not realize they have PFAS exposure or from what direction that exposure may come. Businesses and individuals should assess now whether and what kind of exposure to PFAS they may have. Key entities at risk include water treatment plants, drinking water providers, firefighting facilities, any entity that uses Aqueous Film Forming Foam (AFFF) as a firefighting tool such as airports and petrochemical facilities, and any manufacturer that has used fluorinated compounds in products, such as for nonstick or water repellant applications.