The EPA Proposes its First-Ever Limits on PFAS “Forever Chemical” Contamination in Drinking Water
Under its authority granted by the 1972 EPA Clean Water Drinking Act (CWA) and the 1974 Safe Drinking Water Act (SDWA), the EPA recently proposed adding PFAS “forever chemicals” to the list of dangerous chemicals listed in the National Primary Drinking Water Regulations (NPDWRs) that govern contamination levels in water supplied by the nation’s nearly 150,000 public drinking water utilities.
Why is the EPA taking action on PFAS Forever Chemicals now?
There are a couple of reasons.
The first one is that we now have a greater understanding of the health risks associated with PFAS chemicals, which is reflected in recent health advisories issued by the EPA.
Back in 2016, the EPA issued a health advisory suggesting that PFAS concentrations in drinking water should be limited to 70 ppt (parts per trillion).
However, in June 2022, the EPA issued a much stricter health advisory guidance for PFAS chemicals, based on a cumulative “lifetime” exposure model that not only takes into account PFAS chemical absorption from drinking water but contamination from other sources as well, including the food we eat, the air we breathe, and the consumer products we use (from non-stick cookware to water-proof clothing, and flame retardant furniture.)
The EPA also issued a health advisory limiting exposure to the chemical industry’s supposedly safer next-generation PFAS substitutes – e.g. perfluorobutane sulfonic acid and its potassium salt (PFBS) and hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt – collectively marketed under the brand name GenX.
The second reason the EPA is taking action now is that it’s legally required to update its regulations every six years per a set of amendments to the Safe Drinking Water Act that Congress passed in 1996.
And, unlike EPA health advisories, these regulations (if approved) have “teeth,” meaning they can be enforced across the nearly 150,000 public drinking water utilities over which the EPA has jurisdiction.
What are the new Limits on PFAS Contamination in Drinking Water that the EPA is Proposing?
In the leadup to the EPA’s seventh 6-year review cycle, newly appointed EPA Commissioner Michael Regan announced plans to create a “PFAS Strategic Roadmap” that would assess the “life cycle” impact of PFAS chemicals, including how PFAS chemicals enter the environment, how to monitor and limit PFAS chemical exposures, and how to remediate PFAS contamination in the environment.
The PFAS strategic roadmap was issued in October 2021.
On March 14, 2023, the EPA issued a new proposal to add six PFAS chemicals to the existing list of 16 restricted inorganic chemicals* called out in the National Primary Drinking Water Regulations (NPDWRs).
(*The sixteen inorganic chemicals already subject to EPA regulation in drinking water are antimony, arsenic, asbestos, barium, beryllium, cadmium, chromium, copper, cyanide, fluoride, lead, mercury, nitrate, nitrite, selenium, and thallium.)
The new proposed drinking water regulations would set limits for two PFAS chemicals (PFOA and PFOA) at 4 parts per trillion (ppt). Four other PFAS chemicals (PFNA, PFHxS, PFBS, and GenX) would be regulated through a matrix standard that limits their total cumulative exposure in drinking water.)
Environmentalists welcome the new EPA proposals but point out they are not breaking new ground. Limits on PFAS chemical contamination in drinking water are already in place in ten states, including Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Wisconsin.
The Timeframe – from Proposal to Implementation – for the New EPA Drinking Water Regulations
Now that the new proposed EPA drinking water regulations have been published, the EPA is soliciting written comments from the public. The EPA will also conduct a public hearing on May 4, 2023, to hear verbal comments.
The comment period is scheduled to close on May 30, 2023; after that, the EPA is expected to review and consider all the input gathered from the public before issuing its final regulatory rules. This is expected to happen sometime toward the end of 2023.
Once the rules are finalized and published, public water systems regulated by the EPA will typically have three years to come into compliance with the new rules.
Creating the Infrastructure to Monitor and Limit PFAS Chemicals in Drinking Water will be a Major Financial and Logistical Challenge for Public Water Utilities
Public water utilities have expressed concern over the accelerated timeframe and cost and complexity of complying with the new proposed regulations.
The Association of Metropolitan Water Agencies (AMWA), a trade association for the water treatment and supply industry, argues that the EPA’s 60-day comment period doesn’t give its members enough time to review the thousands of pages outlining the proposed new PFAS regulations.
There are also major concerns about the costs involved in implementation.
The EPA estimates the new PFAS regulations will cost the industry $772 million annually.
However, the AMWA contends this estimate does not address all the capital investment and ongoing operational and maintenance costs that will be incurred by the water treatment industry once the new regulations go into effect.
Who Will Pay the Bill for Limiting PFAS Contamination in Drinking Water?
Water utilities will have to invest in sophisticated laboratory testing technology to measure the low contamination levels of the six PFAS chemicals called out by the EPA’s new proposed rules.
If any of these levels exceed the contamination limits, water utilities will have to make some decisions. One option would be to install a treatment system (such as activated charcoal filter systems or reverse osmoses filters) to remove the PFAS chemicals from the water it supplies to customers.
However, these treatment options could prove to be prohibitively expensive and might encourage some water utilities to consider alternative water sources that meet the regulations without costly water treatment.
In any case, water utilities will be looking for new revenue sources to fund the new testing and treatment infrastructure. This will likely cause customers’ water bills to increase in the future to help recover these increased costs.
Water utilities will also be looking for increased government support.
One long-standing government funding vehicle is the Water Infrastructure and Resiliency Finance Center, a program authorized under the 2014 Water Infrastructure and Innovation Act of 2014. Congress also enacted two other “revolving” funds to assist drinking and wastewater utilities with the high cost of infrastructure; these are the Clean Water State Revolving Fund, which provides states with funds to support loans to municipal water systems, and the Drinking Water State Revolving Fund, which offers financial assistance to local drinking water utilities.
Given the ongoing costs to update aging water supply systems, most analysts agree these existing programs (at existing funding levels) are not going to be sufficient to address the increased costs of limiting PFAS contamination in the water supply.
Utilities may get some relief from the “bi-partisan” 2022 Infrastructure Investment and Jobs Act, which set aside $10 billion to address contamination in drinking water.
On February 13, 2013, the EPA announced it would allocate a $2 billion tranche of this infrastructure funding to support “Emerging Contaminants in Small or Disadvantaged Communities (EC-SDC),” – in other words, $2 billion will be directed to small, rural, and disadvantaged communities to clean up PFAS contamination in their drinking water supplies.
But skeptics wonder if this level of funding is just a drop in the proverbial bucket, especially given that a recent study estimated that 98% of water systems in the US currently show signs of PFAS contamination.
It’s difficult to predict how this story will play out, but if pressed, we would expect that future research could implicate the health consequences of PFAS chemical exposure even further, which will add additional pressure to speed up PFAS mitigation efforts. Hopefully, laboratory researchers will be able to find a cost-effective solution to mitigate the problem at scale, starting with a safer alternative to PFAS forever chemicals.
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