EPA Proposes Drinking Water Regulation Targeting Toxic PFAS Pollutants

In March 2023, the Environmental Protection Agency proposed a National Primary Drinking Water Regulation (NPDWR)?that would establish enforceable limits for six polyfluoroalkyl substances (PFAS) known to occur in drinking water.

The action is part of EPA’s broader Strategic Roadmap to tackle the ongoing PFAS pollution crisis. If fully implemented, water systems will be responsible for monitoring PFAS levels, notifying consumers when PFAS reach unsafe levels, and treating their water supplies to reach the levels established by the Regulation. EPA predicts that doing this will prevent tens of thousands of deaths from serious PFAS-attributable illnesses.

What are PFAS?

PFAS are manmade, synthetic chemicals useful for their water- and oil-resistant properties. They are used in thousands of industry and consumer products, including nonstick cookware, stain-resistant carpets and fabrics, waterproof clothing, cosmetics, and food packaging. They are also found in aqueous film-forming foam (AFFF), which firefighters use to extinguish fires.

PFAS can enter the body through a variety of means, including drinking water. PFAS are often referred to as “forever chemicals” because they take a very long time to break down. As a result, they accumulate in the body and can cause an array of serious health problems. PFAS have been attributed to a higher risk of prostate, kidney, and testicular cancers, decreased fertility and increased high blood pressure in pregnant women, low birth weight, accelerated puberty, elevated cholesterol levels, lowered immune response, and many other conditions.

Terms of the Regulation

The NPDWR would establish a maximum contaminant level goal (MCLG) and maximum contaminant level (MCL) for six PFAS: PFOS, PFOA, PFHxS, GenX Chemicals, PFNA, and PFBS. An MCL is the highest level at which a contaminant can be present in drinking water before it is considered unsafe. An MCLG is the level of a contaminant in drinking water at which no known or anticipated negative health effects occur, allowing for a margin of safety. MCLs are enforceable, but MCLGs are not.

The NPDWR sets a national MCL of 4 parts per trillion for PFOS and PFOA, and an MCLG of zero. The latter four PFAS would be regulated as a mixture using a hazard index (HI) formula. Because PFAS tend to co-occur, the rule would indirectly regulate other PFAS found alongside the ones named in the rule.

If the NPDWR is finalized, water systems will be required to take the following actions:

1.??? Monitor the water supply for the six PFAS according to EPA guidelines. EPA is proposing to permit systems to use some previously collected data to satisfy initial monitoring requirements.

2.??? Notify the public whenever PFAS levels exceed the industry standard.

3.??? Treat the water supply to achieve the MCLs if the levels are found to be above the industry standard.

Our Difference

I am serving as Plaintiffs’ Co-Lead Counsel in the multidistrict litigation (MDL) currently in progress in South Carolina over the contamination of drinking water with toxic PFAS from the widespread use of aqueous film-forming foam (AFFF). This year, in collaboration with the other Co-Lead counsel, Napoli Shkolnik successfully negotiated the fundamental terms of a $1.18 billion settlement with Defendants DuPont, Chemours, and Corteva, establishing their liability for PFAS contamination in public water supply systems and related treatment costs. Soon, thereafter we reached a $12.5 billion settlement with 3M Company, which is the largest amount ever paid by a single company to resolve claims involving contaminated drinking water. It provides compensation critical to protecting our nation’s drinking water supplies, as well as upgrading our water treatment infrastructure to address the threat of PFAS in our communities. ?

Next Steps

EPA is expected to finalize the PFAS National Primary Drinking Water Regulation by the end of 2023, at which point water companies would be required to take action to comply with the rule by 2026.