EPA Sets PFAS Limits in Drinking Water

On April 10, 2024, EPA announced a rule setting enforceable maximum contaminant levels (MCLs) for six PFAS compounds in drinking water. The agency concluded that there is no level of exposure to PFOS or PFOA without risk of harm to human health, so EPA set MCLs for those compounds at the lowest levels current technology can detect, and on three other compounds at similarly low thresholds. Public Water Systems (“PWSs”) subject to the rule must complete initial monitoring by 2027 and comply with all MCLs by 2029. Ongoing compliance costs for PWSs will vary but could reach hundreds of millions for larger systems.

EPA’s final rule establishes MCLs[1] under the Safe Drinking Water Act (“SDWA”)[2] for six PFAS compounds—PFOA, PFOS, PFNA, HFPO-DA, PFHxS, and PFBS.[3] The MCLs for PFOA and PFOS were set at 4 parts per trillion (ppt).[4] It set individual MCLs for PFHxS, PFNA, and HFPO-DA at 10 ppt each.[5] The MCLs for mixtures containing two or more of PFNA, HFPO-DA, PFHxS, or PFBS were set at 1.0 using a Hazard Index (“HI”) approach.[6]

EPA estimates up to 6,700 PWSs serving a total population of up to 105 million people—nearly a third of the United States population—currently exceed the MCLs for one or more of the six PFAS compounds.[7] For PFOA and PFOS alone, the American Water Works Association estimates PWSs will incur annual compliance costs ranging from $253,000 to $51 million depending on system size.[8]

The final rule applies to every PWS that serves at least 15 service connections used by year-round residents, that regularly serves at least 25 year-round residents, or that regularly serves at least 25 of the same persons for more than six months per year.[9] All surface water systems serving at least 15 service connections and groundwater systems serving more than 10,000 people must conduct quarterly monitoring at sample entry points for regulated PFAS.[10] Groundwater systems that serve less than 10,000 people will be required to sample entry points twice per year during an initial compliance monitoring period.[11] If a PWS detects any of the six PFAS compounds at or above a trigger level—now set at half the MCLs—it must conduct quarterly monitoring for those PFAS until it can demonstrate compliance.[12] PWSs have been granted a two-year capital improvement extension for MCL compliance, meaning they  must comply with the MCLs two years after the 2027 deadline for initial monitoring, i.e. five years after the rule is posted on the Federal Register, which is expected to happen later this month.[13] Any violations of the MCLs following that five years will require public notification.[14]

Conventional water treatment technologies are ineffective at removing PFAS, so PWSs that detect PFAS above MCLs will be required to invest in new technologies.[15] EPA has identified several water filtration options as the best available technologies for potential treatment—granulated activated carbon filtration, anion exchange filtration, and high-pressure membrane filtration.[16] Once filtered, disposal of residual PFAS compounds will potentially be subject to compliance with additional environmental laws, including CERCLA[17] and RCRA.[18].

Additionally, states must adopt PFAS MCLs that are no less stringent than the federal PFAS MCLs to retain primary regulatory authority under the SDWA.[19] States must submit a revised program to EPA within two years of the rule’s finalization, or can request an extension of up to two additional years in certain circumstances. [20]

Funding

PWSs faced with significant compliance costs may be able to fund investments in new treatment technologies and necessary infrastructure via government funds from the Infrastructure Investment and Jobs Act (IIJA). The IIJA allocated $10 billion in new government funding to address PFAS and other emerging contaminants in drinking water.[21]

Five billion dollars have been distributed through the states to address emerging contaminants, including PFAS, as part of Congress’ goal to expand access to clean drinking water. That funding focuses on small and disadvantaged communities, which are disproportionately impacted by drinking water contamination.[22] The $5 billion in funding is distributed under section 1459A of the SDWA in $1 billion annual increments through 2026. Section 1459A authorizes EPA to award grants to states assisting small and disadvantaged communities that are otherwise unable to finance projects or activities required to comply with the SDWA. [23] In conjunction with the finalization of the PFAS MCLs, EPA announced the availability of nearly $1 billion in funding for 2024. [24]

Qualified PWSs in Indian Country, or a state acting on behalf of an underserved community, are eligible to receive this funding.[25] The relevant PWS must serve a community that is disadvantaged or that may become disadvantaged if required to increase water rates after carrying out a project, or a small community with less than 10,000 people that is unable to incur debt sufficient to finance a project.[26]

Each state[27] defines the affordability criteria for a disadvantaged community.[28] Activities eligible for this funding include: (1) investments necessary for a public water system to comply with the SDWA, (2) assistance that directly and primarily benefits a disadvantaged community, and (3) programs to provide household water quality testing, including testing for unregulated contaminants.[29]

Recent projects funded by the IIJA to address PFAS contamination include a $33.5 million forgivable loan to build a drinking water treatment facility to address PFAS contamination in Tucson’s aquifer[30] and a $11 million forgivable loan to build a pipeline from an area with non-detectable levels of PFAS to the Ottawa Treatment Facility in Dayton, Ohio.[31]

Two judicially approved class action settlements between water providers and major PFAS manufacturers DuPont and 3M, totaling more than $13 billion, offer another potential funding source for PWSs.[32] The settlements were reached in the context of a multidistrict litigation aggregating numerous claims by PWSs and other plaintiffs against PFAS manufacturers and other defendants. Participating class members in the two settlements are expected to receive funds from the settlement in the future. Litigation against other defendants involved in  manufacturing and using PFAS-containing firefighting foam AFFF and related products continues.

Superfund Significance

SDWA MCLs are "applicable or relevant and appropriate requirements" or “ARARS” for purposes of Superfund remedy design.[33] Accordingly, these PFAS MCLs will influence the shape of Superfund remedial actions triggered by other contaminants. If, as expected later this year, EPA also finalizes its rule listing certain PFAS chemicals as CERCLA hazardous substances, those listed PFAS compounds will themselves become triggering contaminants for purposes of Superfund response and liability.[34] RCRA and CERCLA rules will have significant financial consequences for the many businesses that encounter PFAS in their manufacturing processes, products, or their waste streams, as well as landowners and other categories of potentially responsible parties.

Opposition to the Rule

Issuing enforceable MCLs for PFAS under the SDWA may face significant opposition from the chemical industry, cities, and water utilities, including potential legal challenges.  

The rule garnered over 120,000 comments, both in support and opposition. Numerous organizations representing water providers, cities, and counties submitted comments in opposition. These include the American Water Works Association; [35] Association of Metropolitan Water Agencies; [36] American Water Works Company, Inc. [37]; National Association of Clean Water Agencies; [38] National Ground Water Association; [39] National Rural Water Association; [40] and U.S. Conference of Mayors, National League of Cities and National Association of Counties. [41] These organizations assert that costs associated with compliance are significantly higher than what EPA estimates and that those costs outweigh the benefits the new rule might provide. Moreover, they assert that the quantities of both qualified laboratory capacity and necessary treatment equipment will not be adequate to meet the needs of the thousands of water utilities that will attempt to comply with the rule. EPA reached a different conclusion, counting among the rule’s benefits the ability to prevent over 9,600 deaths and reduce approximately 30,000 serious illnesses.[42]

Several state agencies also submitted comments opposing the rule: Arkansas Department of Health; [43] Missouri Department of Natural Resources; [44] and, Wyoming Department of Environmental Quality [45]. The state agencies primarily take issue with the costs associated with compliance and the effect on small water systems.

Finally, major PFAS manufacturers and a chemical industry organization also have attacked the rule: American Chemistry Council; [46] 3M; [47] and The Chemours Company. [48] Their comments in opposition claim EPA does not have sufficient legal grounds to regulate PFNA, HFPO-DA, PFHxS, and PFBS using a hazard index and that EPA did not use the best available science in determining the health effects of the synthetic chemicals. Moreover, they contend that the proposed MCLs are not feasible due to insufficient laboratory capacity and that EPA improperly inflated the benefits of the rule and discounted the costs.

Which of these groups will challenge the rule in court remains to be seen, but litigation is highly likely.

At Marten, we track PFAS developments and update readers through our Newsletter, our PFAS Deskbook, as well as Monthly PFAS Briefings hosted by the Environmental Law Institute. Should you have any questions regarding the finalized SDWA rules or other PFAS regulations, contact Jeff Kray, Jessica Ferrell, or Kameron Schroeder.

Correction: The original version of this article stated groundwater systems serving more than 10,000 people must sample entry points twice per year during an initial compliance monitoring period. It should have stated groundwater systems serving more than 10,000 people must sample entry points quarterly during an initial compliance monitoring period.
 

[1] EPA, PFAS National Primary Drinking Water Regulation Rulemaking, Pre-Publication Version PFAS MCL Rule at 113–14 (Apr. 8, 2024), https://www.epa.gov/system/fil....

[2] 42 U.S.C. § 300f et seq.

[3] PFAS MCL Rule at 1.

[4] Id. at 4–5.

[5] Id. at 4–6.

[6] Id.

[7] Id. at 217.

[8] American Water Works Association, PFAS National Cost Model Report at 39 (Mar. 7, 2023), https://www.awwa.org/Portals/0... (last visited Apr. 10, 2024).

[9] National Primary Drinking Water Regulations, 40 CFR § 141.2.

[10] PFAS MCL Rule at 397.

[11] Id.

[12] Id. at 611–12.

[13] Id. at 7.

[14] Id. at 603–05.

[15] McLeaf et al., Removal Efficiency of Multiple Poly- and Perfluoroalkyl Substances (PFASs) in Drinking Water Using Granular Activated Carbon (GAC) and Anion Exchange Column Tests, 120 Water Res. 77–87 (2017), https://doi.org/10.1016/j.watr... (last visited Apr. 10, 2024).

[16] PFAS MCL Rule at 105.

[17] Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 87 Fed. Reg. 54,415 (Sep. 6, 2022).

[18] Victor Xu and James Pollack, EPA to Require PFAS Cleanups at RCRA Sites, Marten Law (Feb. 2, 2024), https://www.martenlaw.com/news....

[19] 40 C.F.R. § 142.10.

[20] Id. § 142.12(b).

[21] H.R. 3684, 117th Cong. (2021) (enacted) (hereinafter “IIJA”); Pub. L. No. 117-58, Div. J, Title VI; Enrolled Bill at 973–74, ¶¶ (4)–(6) .

[22] Fact Sheet: The Bipartisan Infrastructure Deal, The White House (Nov. 6, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/06/fact-sheet-the-bipartisan-infrastructure-deal/ (last visited Apr. 10, 2024); Laurel A. Schaider et al., Environmental Justice and Drinking Water Quality: Are There Socioeconomic Disparities in Nitrate Levels in U.S. Drinking Water?, BioMed Central (Jan. 17, 2019) (finding higher levels of nitrate contamination in low-income and minority communities), https://ehjournal.biomedcentral.com/articles/10.1186/s12940-018-0442-6 (last visited Apr. 10, 2024); Maura Alaire et al., National Trends in Drinking Water Quality Violations, Proceedings of the National Academy of Science of the United States of America (Feb. 27, 2018) (stating that low-income and rural regions were most vulnerable to water quality issues), https://www.sciencedaily.com/releases/2018/02/180212170017.htm (last visited Apr. 10, 2024); Kristi Pullen Fedinick et al., Watered Down Justice, Natural Resources Defense Council (Mar. 27, 2020), https://www.nrdc.org/resources/watered-down-justice (environmental organizations found that the rate of drinking water violations increased for low-income and minority communities).

[23] 42 U.S.C. § 300j-19a.

[24] Memorandum from EPA Acting Assistant Administrator Bruno Pigott to Water Division Directors Regions I–X (Apr. 10, 2024), https://www.epa.gov/system/files/documents/2024-04/final_fy24_bil_ecsdc_allotmentmemo_april-2024.pdf (last visited Apr. 10, 2024).

[25] 42 U.S.C. § 300j-19a(c).

[26] Id.

[27] Washington defines a disadvantaged community as the service area where the proposed project will result in water rates that are more than 1.5% of the median household income of the service area or restructuring when one or more public water systems are having financial difficulties. Wash. Admin. Code § 246-296-020(9). Texas defines a disadvantaged community as a community with an Annual Median Household Income (“AMHI”) less than or equal to 75% of the state’s AMHI and with a Household Cost Factor greater than or equal to 1 percent if only water or sewer service is provided, or greater than or equal to 2 percent if both water and sewer service are provided. SFY 2023 Intended Use Plan, Texas Water Development Board (October 5, 2022), https://www.twdb.texas.gov/financial/programs/CWSRF/doc/SFY2023/SFY2023-CWSRF-IUP.pdf (last visited Apr. 10, 2024). California defines a disadvantaged community as the entire service area of a Community Water System, or a community therein, in which the Median Household Income is less than 80 percent of the statewide annual average. Cal. Health & Saf. Code, §§ 116275, 116760.20.

[28] 42 U.S.C. § 300j-12(d)(3).

[29] Id. § 300j-19a(b)(2).

[30] Katya Mendoza, Tucson Water Receives Federal Funding to Combat PFAS, Construct New Water Treatment Facility, Arizona Public Media (Nov. 17, 2023), https://news.azpm.org/p/azpmnews/2023/11/17/218254-tucson-water-receives-federal-funding-to-combat-pfas-construct-new-water-treatment-facility/ (last visited Apr. 10, 2024).

[31] Cornelius Frolik and Sydney Dawes, Dayton to Spend Millions to Reduce PFAS Chemicals in City, County Drinking Water, Dayton Daily News (Jan. 24, 2024), https://www.daytondailynews.com/local/dayton-to-spend-millions-to-reduce-pfas-chemicals-in-city-county-drinking-water/MU7YTHQLOBDKDBGTBNEU63XSGI/ (last visited Apr. 10, 2024).

[32] For more information regarding the settlements, visit https://www.pfaswatersettlement.com/.

[33] 42 U.S.C. § 9621(d)(2)(ii).

[34] Supra note 17.

[35] The American Water Works Association, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (May 31, 2023), https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1759 (last visited Apr. 10, 2024).

[36] Association of Metropolitan Water Agencies, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (Jun. 1, 2023), https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1738 (last visited Apr. 10, 2024).

[37] American Water Works Company, Inc., Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (May 31, 2023),  https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1608 (last visited Apr. 10, 2024).

[38] National Association of Clean Water Agencies, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (May 31, 2023), https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1659 (last visited Apr. 10, 2024).

[39] National Ground Water Association, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (Jun. 4, 2023), https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1804 (last visited Apr. 10, 2024).

[40] National Rural Water Association, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (May 31, 2023),  https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1641 (last visited Apr. 10, 2024).

[41] U.S. Conference of Mayors, National Leagues of Cities and National Association of Counties, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (Jun. 1, 2023), https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1733 (last visited Apr. 10, 2024).

[42] PFAS MCL Rule at 7.

[43] Arkansas Department of Health, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (Jun. 4, 2023), https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1821 (last visited Apr. 10, 2024).

[44] Missouri Department of Natural Resources, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (May 29, 2023), https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1563 (last visited Apr. 10, 2024).

[45] Wyoming Department of Environmental Quality, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (May 31, 2023),  https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1716 (last visited Apr. 10, 2024).

[46] American Chemistry Council, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (Jun. 4, 2023), https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1841 (last visited Apr. 10, 2024).

[47] 3M, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (Jun. 1, 2023), https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1774 (last visited Apr. 10, 2024).

[48] The Chemours Company, Comment on Proposed Per- and Polyfluoroalkyl Substances National Primary Drinking Water Regulation (Jun. 4, 2023), https://www.regulations.gov/comment/EPA-HQ-OW-2022-0114-1845 (last visited Apr. 10, 2024).