Author: Alliant

Earlier this year, the Biden Administration took initial steps to regulate 6 types of PFAS,ⁱ a family of ubiquitous synthetic chemicals known as “forever chemicals” because they linger in the body and the environment and cause serious health problems. The proposed regulations are the first in our country’s history to set a national drinking water standard by providing legally enforceable levels (maximum contaminant levels or MCL’s) for the 6 PFAS in drinking water.

In addition, some 4000 lawsuits have been filed by U.S. cities, state governments and individuals against PFAS manufacturers. The suits have been consolidated and are pending in federal court in South Carolina. Several defendants in a test case set for trial in June of this year settled days before trialⁱⁱ and with other tentative settlements pending, the court has delayed proceedings in the case.ⁱⁱⁱ

According to the Environmental Protection Agency (EPA), the 6 chemicals proposed to be regulated were selected based on the clearest science as to their impact on health. The EPA is evaluating other chemicals for future regulation as well. The proposed rule, expected to be finalized after a 30-day comment period, by the end of 2023, would also require public water systems to:

• Monitor for these PFAS;
• Notify the public of the levels of PFAS, and
• Reduce the levels of these PFAS in drinking water if they exceed the rule’s MCL’s. (This would include removing these chemicals through treatment or by switching to an alternative water supply that meets standards.)^iv

Public water systems generally have 3 years from the effective date of a regulation to comply, according to the EPA.

The proposed regulation follows issuance of the EPA’s October 2021, PFAS Strategic Roadmap which set out a whole-of-agency approach to addressing PFAS including setting timelines for EPA actions to safeguard public health and protect the environment against PFAS contamination.^v One year later, the EPA issued a health advisory that these chemicals were much more dangerous even at levels much lower than previously thought and set a deadline for issuing a proposed regulation on the subject by the end of 2022.^vi

After undergoing an internal review, the proposed regulation was issued in March of this year. The EPA predicts that if implemented, the proposed regulation will save thousands of lives and decrease tens of thousands of serious PFAS-attributable illnesses.^vii It also estimates that the cost to water utilities of compliance with the regulation will be $772 million annually. Public utilities expect compliance to cost much more.^viii

PFAS chemicals have been in wide use in this country since at least the 1940’s and appear in a broad range of household items, including nonstick cooking pans, clothing, furniture, food packaging and cosmetics, along with foam used in firefighting. PFAS generally help repel water and oil, however, the strong elemental bonds that allow them to repel oil and water make them difficult to break down in the body or in the environment. According to a 1999 study, PFAS chemicals can be found in 98% of the human population in the US.^ix PFAS remain in the body for many years and exposure has been found to lead to serious health problems such as kidney and liver cancers, obesity, thyroid disease, high cholesterol, and decreased fertility.^x According to data collected by the Environmental Working Group and Northeastern University, as of June of 2022, 2,858 locations in 50 states’ water systems have been contaminated with PFAS.^xi

Because the proposed regulation, if adopted, will impact public municipal water systems by requiring them to remediate the 6 PFAS levels if more than the MCL’s are present, it is important to know that the administration and congress agreed to appropriate funds to assist with these efforts. The 2021 Infrastructure Investment and Jobs Act^xii included an historic level of funding, approximately $10 billion, for distribution to municipal systems to combat PFAS exposure.^xiii