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National Primary Drinking Water Regulation – Forever Chemicals (PFAS)
The US EPA announced its first ever standard regulating per- and polyfluoroalkyl substances (PFAS), in drinking water on Wednesday April 10, 2024. This final rule will regulate five (PFOA, PFOS, PFNA, PFHxS and HFPO-DA (commonly known as GenX chemicals)) out of the estimated 9,000 unique PFAS chemicals, in addition to setting a Hazard Index Level for a mixture of two or more PFAS compounds (PFNA, PFHxS, GenX and PFBS). This standard is anticipated to be the first of many rules aimed at protecting communities from the harmful effects of these chemicals.
What Are PFAS?
PFAS became widely used beginning in 1940s, praised for their versatility in repelling oil and water and resisting heat. Now, PFAS are present in virtually everything, including food wrappers, rain jackets, makeup, carpet, nonstick pans and firefighting foam. Drinking water is just one of countless ways that people can be exposed to PFAS.
PFAS are more commonly known as “forever chemicals” because these synthetic compounds have such a strong molecular bond, it is virtually impossible for the chemicals to break down naturally. Although some PFAS have been phased out of use in the US, PFAS still are found in the environment because PFAS breaks down slowly and can accumulate in the environment over time. PFAS have been found in rainwater and fish. Furthermore, it is believed that almost all people in the United States have measurable amount of PFAS present in their blood. Serious health issues have been linked to PFAS, including increased risk of cancer, kidney and thyroid disease, ulcerative colitis, infertility, birth defects, and pregnancy complications.
EPA Limits on PFAS in Drinking Water
EPA’s final rule sets a legally enforceable standard for PFAS, specifically for PFOA and PFOS (the most common) in drinking water at 4.0 parts per trillion (ppt). A 1.0 ppt is the equivalent of one drop of PFAS in an Olympic-sized swimming pool. These legally enforceable levels (also called Maximum Contaminant Levels) help protect the public by setting contaminant levels of PFAS where there is no known or expected risk to health.
All public water systems across the United States must monitor PFAS and report the levels of PFAS in their drinking water by 2027. Ongoing compliance monitoring will be required. If public water systems show that drinking water levels exceed 4.0 ppt, then treatment systems must be implemented by 2029 to reduce the amount of PFAS. Beginning in 2029, public water systems must notify the public of any violation of the standard. Granular activated carbon, reverse osmosis and ion exchange systems are several water treatment technologies already available to help communities reduce PFAS in drinking water. Previously collected monitoring data may be used to satisfy initial monitoring requirements, if the sampling was conducted using approved EPA methods.
All surface water systems will be required to conduct quarterly monitoring in a 12-month period. Small groundwater systems serving 10,000 or less customers will only be required to conduct monitoring twice per year. Small and rural water systems will be required to complete initial monitoring by 2027.
Federal Funding is Available to Assist with Compliance
The Bipartisan Infrastructure Law (BIL) has set aside $1 billion to help communities implement testing and achieve compliance under the rule. This funding is a part of a larger $9 billion investment under the BIL that is directed to help communities where drinking water is heavily impacted by PFAS contamination.
This final rule will not apply to private well owners that serve fewer than 25 people. These wells are not regulated by the federal government. If a private well owner suspects PFAS contamination, there is funding available under the Small, Underserved, and Disadvantaged Communities Grant Program, to assist with initial testing and treatment of the private well. EPA also is offering training and technical assistance to private wells owners who suspect PFAS contamination.
Compliance with this rule is anticipated to be difficult to implement as PFAS are present in virtually everything around us and the likelihood of cross-contaminating test samples during initial monitoring is extremely high. Additionally, the EPA does not have a regulatory scheme in place for the treatment, destruction and disposal of any water treatment residuals containing PFAS but EPA has issued guidance documents to assist with the disposal of PFAS.
Although implementation may prove to be problematic, the regulation of PFAS in drinking water is the first step towards protecting people from the dangers of exposure to these chemicals. More information regarding the EPA’s water infrastructure technical assistance programs can be found at Water Technical Assistance Programs | US EPA
In addition, the attorneys of Eastman & Smith’s Environmental Law Practice Group are here to help if you have questions about compliance. For more information about our practice group, or to seek direct assistance, you can contact one of our Environmental attorneys.
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Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.