EPA Finalizes Rule to Regulate PFAS in Drinking Water
On Wednesday, the U.S. Environmental Protection Agency (EPA) announced a final National Primary Drinking Water Regulation (NPDWR), establishing Maximum Contaminant Levels (MCLs) for six per- and polyfluoroalkyl substances (PFAS). The long-awaited regulation has drawn pushback from the water sector over the cost increases it may impose on utilities and ratepayers.
The final rule will regulate PFOA and PFOS to MCLs of 4 parts per trillion (ppt). It will also regulate PFHxS, PFNA, GenX to 10 ppt and will mandate water systems to measure for a mixture of at least two of the four chemicals PFHxS, PFNA, GenX and PFBS using a hazard index. The final NPDWR requires:
- Public water systems must monitor for these PFAS and have three years to complete initial monitoring (by 2027), followed by ongoing compliance monitoring. Water systems must also provide the public with information on the levels of these PFAS in their drinking water beginning in 2027.
- Public water systems have five years (by 2029) to implement solutions that reduce these PFAS if monitoring shows that drinking water levels exceed these MCLs.
- Beginning in five years (2029), public water systems that have PFAS in drinking water which violates one or more of these MCLs must take action to reduce levels of these PFAS in their drinking water and must provide notification to the public of the violation.
To inform the final rule, EPA said it evaluated more than 120,000 comments submitted by the public on the rule proposal, which was released in March 2023. The agency also considered input received during multiple consultations and stakeholder engagement activities held both prior to and following the proposed rule.
Much of the final rule was unchanged from the original proposal despite the concerns from the water utility sector. One of the updates is the five-year compliance timeline, extended from three years in the proposed rule. The three MCLs of 10 ppt for PFHxS, PFNA and GenX were also not included in the proposal.
The NPDWR is expected to bring major financial challenges for the water sector. Drinking water utilities may be forced to spend millions on PFAS treatment and mitigation measures amid a busy regulatory environment. The EPA’s initial economic projection estimated that national compliance costs for remediating PFAS in drinking water will be $772 million annually. But the American Water Works Association (AWWA) suggests that more than $45 billion in water utility compliance costs will be required to meet the requirements of EPA’s proposed rule.
Industry Reaction
American Water Works Association
In 2023, following the release of the proposed rule, associations representing the drinking water sector offered strong recommendations for amendments, with AWWA saying that standards of 10 ppt for PFOA and PFOS were most appropriate. AWWA added that current monitoring data is insufficient to issue the determinations found in the rulemaking, and said EPA should wait on the availability of national monitoring data currently being collected as part of the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5). The UCMR 5 data would represent the most current and comprehensive results for PFAS occurrence in U.S. drinking water supplies.
Following the final rule announcement on Wednesday, AWWA issued a statement in support of safe drinking water standards while reiterating it’s concerns about the rule, saying in part:
“The Safe Drinking Water Act provides a framework to evaluate risks and create regulations that are both protective and affordable. This process assists water utilities in prioritizing investments in a way that best protects their communities. As noted in AWWA’s comments on the proposed rule, the association is concerned that the rule’s health and financial impacts are not accurately characterized. AWWA estimates the cost of the rule is more than three times higher than the agency’s calculations. The magnitude of these additional costs will lead to affordability challenges in many communities.”
AWWA said it supports practices to ensure source water bodies are kept free of PFAS contamination as a way to mitigate forever chemicals in drinking water. AWWA said it encourages EPA to follow through on its commitments to address harmful PFAS manufacturing, uses, and releases to the environment and holding polluters legally accountable.
Association of Metropolitan Water Agencies
In 2023, the Association of Metropolitan Water Agencies (AMWA), which lobbies for large public drinking water systems cited high costs and an insufficient timeline for compliance as its primary concerns and called for a two-year extension for compliance, which was granted in the final rule.
On Wednesday AMWA CEO Tom Dobbins said, “We appreciate EPA’s action to finalize the National Primary Drinking Water Regulation while utilizing a five-year implementation timeline that AMWA had recommended to give water systems more time to install necessary treatment systems. However, AMWA has many concerns about the timing of EPA’s finalization of the health index and additional drinking water standards for the three additional PFAS since data is still being collected from utilities under the fifth Unregulated Contaminant Monitoring Rule.”
“While we appreciate that there is some Bipartisan Infrastructure Law funding available for utilities, the money will not cover the billions of dollars in operations and management costs that will be required as long as these chemicals are present in our nation’s drinking water sources due to the manufacture and use of PFAS broadly in commerce. AMWA is also concerned that compliance with the new rule will require community water systems across the country to eventually dispose of water treatment residuals containing certain PFAS that EPA has also proposed to designate as hazardous substances,” Dobbins added.
Water coalition testifies on PFAS CERCLA exemption for utilities
Nation Rural Water Association
The National Rural Water Association (NRWA) echoed the above statements in support of protecting public health through safe drinking water while noting the cost and compliance concerns it has particularly for small, rural system that make up its membership. NRWA made substantial comments to the EPA about the proposed ruling before the final regulation.
“NRWA applauds EPA for providing utilities with time and flexibility to comply with the new PFAS National Primary Drinking Water Regulation, but we recognize that the requirements will have disproportionate impacts on small, disadvantaged, and rural communities that lack the financial and managerial capacity to make upgrades.,” NRWA said in a statement. It added: “PFAS testing and treatment will place significant financial burdens on our nation’s communities. While the exact costs are not known, this burden cannot be overlooked, and equitable solutions must be identified.”
NRWA noted its partnership with Napoli Shkolnik PLLC to create a PFAS Cost Recovery Program in an effort to ensure members would have funding resources to address forever chemicals.
“We are proud that the ‘polluter pays’ principle is being upheld and highlighted by the recent settlements in the Multi-District Litigation where major companies, including 3M and Dupont, have announced historic settlement amounts for water systems totaling over $13 billion. This funding will play a major role in helping systems comply with this new regulation,” the association said in the statement.
Where do PFAS legal settlements for utilities stand?
Funding
In addition to this week’s final rule, EPA announced close to $1 billion in funding through President Joe Biden’s Investing in America agenda to help 56 states and territories in initial PFAS testing and treatment at both public water systems and for homes served by privately owned wells. About $9 billion in total is being made available through the Bipartisan Infrastructure Law for PFAS and emerging contaminant-related projects.
