In an unprecedented move, the federal government proposed strict new rules limiting the presence of a class of chemicals known as per- and polyfluoroalkyl substances, or "PFAS," in the nation's drinking water – a decision that could impact nearly all Americans.
While PFAS chemicals are ubiquitous in consumer goods and pervasive in the environment, they are also linked to serious health issues and illnesses. The U.S. Environmental Protection Agency's (EPA) proposed regulation – the PFAS National Primary Drinking Water Regulation (NPDWR) – would place the burden on public water systems to monitor for PFAS, inform the public of PFAS levels in drinking water, and remediate PFAS if drinking water levels exceed the new standards.
What is the matter with PFAS?
PFAS refers to a class of chemicals that are widespread in American commerce due to their ability to repel water and oil in common items like clothing, furniture, and food packaging. PFAS chemicals have strong repelling properties because of a powerful carbon-fluorine bond, which also makes them very difficult to break down in the human body as well as the natural environment. Indeed, their pervasiveness has earned them the name of "forever chemicals."
One study found that PFAS chemicals can be found in the bodies of about 98 percent of Americans and can lead to a range of adverse health impacts like cancer, obesity, and asthma, among other illnesses. While PFAS chemicals have been largely phased out of manufacturing today, the danger remains in their persistence in drinking water. To tackle this issue, EPA issued the proposed regulations pursuant to its authority under the Safe Drinking Water Act (SDWA).
What is in the proposed regulation?
EPA's proposed regulation suggests a dual approach for regulating six (6) PFAS chemicals in drinking water:
- The regulation would impose a Maximum Contaminant Level (MCL) of four (4) parts per trillion (ppt) for PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonic acid) chemicals. While EPA has said that "there is no level of these contaminants that is without a risk of adverse health effects," it has also said that four (4) ppt is the lowest level at which these chemicals can be reliably detected using approved methods.
- The regulation would also apply a "Hazard Index" to determine the levels at which a mix of four (4) other chemicals are safe, including PFNA (perfluorononanoic acid), PFHxS (perfluorohexane sulfonic acid), PFBS (perfluorobutane sulfonic acid), and HFPO-DA (hexafluoropropylene oxide dimer acid) and its ammonium salt (also known as GenX chemicals). Thus, EPA opted not to set an MCL for each of these chemicals because it found that they generally co-occur in drinking water.
What will be the impact of the new regulation?
If finalized, the new regulations would have far-reaching impacts on American commerce and society. EPA Administrator Michael Regan celebrated the new rules as "a tremendous step forward in the right direction" that "will prevent thousands of deaths and reduce tens of thousands of serious PFAS related illnesses." While many companies have ceased using PFAS altogether, some are now pledging to phase out their use in coming years.
One of the most significant impacts will be on public water systems, which, by EPA's own estimates, will have to expend about $772 million to comply with the new rules. States would also have to adopt new regulations that are at least as strict as the federal rules or relinquish some regulatory control to the federal government. While 10 states currently have their own PFAS regulations, most do not.
Finally, the Biden Administration has also advanced additional policy tools for targeting PFAS in drinking water. For instance, President Biden's Infrastructure Investment and Jobs Act allocated $10 billion for cleanup of contaminants like PFAS in drinking water while EPA has proposed regulating PFOA and PFOS as "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which may also open the floodgates of additional investigation and private cost recovery litigation at sites throughout the country.
The new regulation will be open to public comment for 60 days following its publication in the Federal Register. It is expected to receive strong support from environmental groups while also facing criticism from industry groups. EPA hopes to finalize the regulation by the end of 2023, although delays are common for major regulations like this.
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