Examining EPA’s Proposed Maximum Contaminant Levels for ‘Forever Chemicals’ in Drinking Water
In the world of water utility finance, it’s widely known that ratepayers like residents and businesses represent the primary source of revenue for local water and sewer systems. Therefore, when regulatory mandates come down from the federal government with the potential to increase costs for water systems, even with federal support, it’s generally the local ratepayer who is left to foot the bill.
This is one of the main concerns the sector is figuring out how to navigate after a big regulatory announcement in the spring.
In March, following much anticipation, the US. Environmental Protection Agency (EPA) released its first-ever proposed National Primary Drinking Water Regulation for six per- and polyfluoroalkyl substances (PFAS), also known as “forever chemicals.” If finalized, the proposal would regulate PFOA and PFOS – two of the most common types of PFAS – as individual contaminants to 4 parts per trillion, and will regulate four other PFAS – PFNA, PFHxS, PFBS, and GenX Chemicals – as a mixture.
EPA says the proposal builds on the agency’s other recent actions to combat PFAS, including one to designate PFOA and PFOS as CERCLA hazardous substances. The EPA says it is also enhancing its data on PFAS under its National PFAS Testing Strategy and the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) which requires testing and sampling to collect new data on PFAS in drinking water.
The Bipartisan Infrastructure Law (BIL) also invests $9 billion over five years to help communities combat PFAS. These funds can be used in small or disadvantaged communities to address emerging contaminants like PFAS in drinking water through actions such as technical assistance, water quality testing, contractor training, and installation of centralized treatment technologies and systems.
The proposed PFAS MCLs are not yet enforceable drinking water standards. EPA has said it expects to issue the final MCLs later this year, and will announce at that time, the date water providers will need to comply with the new standards.
If finalized, the MCLs are expected to bring financial challenges for water systems as drinking water utilities may be forced to spend billions on treatment and mitigation measures despite some of the federal assistance.
PFAS Basics
For some background, PFOA, or Perfluorooctanoic Acid, was invented by 3M Corp. in 1947, along with several other chemical compounds. This family of manmade chemicals is known today as PFAS, or “forever chemicals,” as they do not break down in the environment. They are found in certain fire retardants, as well as stain-, water- and grease-resistant products. DuPont started purchasing these chemicals in 1951 to use in the manufacturing of its own products, including Teflon, a brand known for its use in non-stick cookware.
PFOA and Perfluorooctane Sulfonate (PFOS) are two of the most widely used and studied chemicals in the PFAS group. PFOA and PFOS are no longer used in manufacturing in the United States, but other PFAS compounds still are.
DuPont was found liable in one of the early major lawsuits over PFAS contamination when a farmer in West Virginia sued the company in the early 2000s for contaminating water downstream of a manufacturing plant causing cattle to suffer numerous health issues.
3M and DuPont are the two primary manufacturers of PFAS compounds. 3M has said it will stop manufacturing PFAS by 2025.
Health Effects
A common characteristic and therefore concern of PFAS is that the chemicals break down very slowly and can build up in people, animals and the environment over time. Due to their widespread production and use, as well as their ability to move and remain in the environment, surveys conducted by the Centers for Disease Control and Prevention (CDC) show that most people in the United States have been exposed to some PFAS. According to EPA, most known exposures are relatively low, but some can be high, particularly when people are exposed to a concentrated source over long periods of time.
This can include consuming water supplied by public water systems that may contain PFAS.
Some of the known health effects include reproductive effects such as decreased fertility or increased high blood pressure in pregnant women, developmental effects or delays in children, including low birth weight, accelerated puberty, bone variations or behavioral changes. Increased risk of some cancers has also been linked to PFAS, as well as reduced ability of the body’s immune system to fight infections, including reduced vaccine response.
The Cost
The public water utility sector has largely been supportive of the measures in that the proposed MCLs are intended to further protect public health. But some are calling for the rulemaking to proceed cautiously as implementing more monitoring, treatment and mitigation measures will only increase costs for water systems already facing a difficult financial situation relative to needs. EPA’s recently released 7th Drinking Water Infrastructure Needs Survey and Assessment revealed drinking water utilities need $625 billion in infrastructure investments over the next 20 years.
“We support the EPA’s efforts to safeguard public drinking water supplies by addressing emerging contaminants like PFAS compounds,” said Washington Suburban Sanitary Commission General Manager and CEO Kishia L. Powell in a statement. “We don’t want these manmade compounds in our drinking water supplies, and if treatment process changes are necessary to meet these new regulations, rest assured, we will make them.”
The Association of Metropolitan Water Agencies (AMWA), which represents the policy interests of large drinking water systems across the United States, also weighed in, saying in a statement that while it supports sound, science-based regulation that protects public health, it will be reviewing the rule and EPA’s cost benefit analysis.
“AMWA is concerned about the overall cost drinking water utilities will incur to comply with this proposed rulemaking,” said Tom Dobbins, AMWA CEO. “Ultimately, without more federal support for upgrading current treatment technologies, average Americans will have to pay the cost of further treatment through higher rates for their water.”
A recent study by Black & Veatch on behalf of the American Water Works Association (AWWA) notes the proposed MCLs could impact more than 66,500 public water systems (Community Water Systems and Non-Transient Non-Community Water Systems). The same study estimated the national cost for water systems to install treatment to remove PFOA and PFOS to levels required by EPA’s proposal exceeds $3.8 billion annually.
Additionally, AWWA released some estimates using an occurrence database using data from numerous state monitoring programs and the UCMR 3 program. AWWA estimates that to meet the proposed standards, more than 5,000 water systems will have to develop new water sources or install and operate advanced treatment. It also estimates there are another 2,500 water systems that have potentially already installed treatment facilities in response to their state PFAS standards, but would need to make changes to operations to comply with the new, stricter standards. These above estimates refer to the number of systems that could incur costs related only to increased treatment and does not include potential monitoring or administrative costs.
Legal Options
One avenue of financial recourse for utilities is to use the legal system to make the manufacturers of PFAS and the products that contained them pay for treatment expenses.
As hundreds of water systems across the country have brought lawsuits against PFAS manufacturers, a large group of these cases have been consolidated in what is known as a multidistrict litigation (MDL). The MDL, originally formed to hear cases over PFAS contamination from aqueous film-forming foam (AFFF), is pending in federal court in South Carolina. The first trial for water system cases in the MDL, known as a “bellwether case,” is scheduled to start June 5, 2023. As a result of the bellwether trial, both the water suppliers and defendants will get an idea of what will happen when these cases go to trial and juries hear all of the evidence.
Hundreds of water providers joined the MDL over PFAS contamination from AFFF. These chemicals have been used for decades to extinguish chemical or petroleum fires at military bases, airports, and industrial facilities, and have been used by local frefighters. When ATFF is discharged, it can make its way into the soil, surface water and groundwater. There are also many cases in the MDL claiming PFAS contamination from a mix of both AFFF and other PFAS-containing products, which could have entered water supplies from wastewater treatment plants, landfills or other local sources.
Ken Sansone, partner with SL Environmental Law Group, said of the EPA’s proposed MCLs for PFAS, “I think this announcement is going to make the scope of the problem clearer.” SL Environmental Law Group focuses exclusively on representing public entities, water systems, airports and businesses in water contamination litigation. Attorneys from SL Environmental say there is ample evidence PFAS polluters have been aware of the dangers of the chemicals for decades.
“I think there are some historical examples that prove that this model of bringing lawsuits against the manufacturers to help recoup or offset treatment costs actually works.”
“From a public health perspective, these chemicals are very dangerous, and that’s been pretty well known for a pretty long time,” Sansone says, adding that part of the problem now is that a majority of community water systems lack up-to-date, comprehensive data on PFAS.
The fourth Unregulated Contaminant Monitoring Rule (UCMR 4) published in the Federal Register in 2016 required testing for 6 PFAS substances, but under less sensitive methods than those available today. Under UCMR 5, 30 different PFAS chemicals will need to be tested between 2023 and 2025, using up-to-date methodologies. This means that water providers who tested last time and didn’t have significant PFAS contamination may now find that they do.
It’s important to note that individual states have been making their own preparations in advance of the expected MCL proposal. New Jersey became the first state to adopt an MCL for PFAS in drinking water in 2018. Since then, more than a dozen states have already enacted or are in the process of enacting their own PFAS MCLs for multiple PFAS compounds at varying levels. As proposed, EPA’s new standards would be stricter than any of the current state regulations.
“These utilities are dealing with this through no fault of their own, and in the vast majority of cases, no fault of any business in their community,” Sansone says. “[These chemicals] were really put into widespread use by two manufacturers, and in recognition of that, I think you’ll see more and more utilities saying they should foot the bill and not the ratepayers.”
But even if these lawsuits are successful, will there really be any good news for the ratepayer? Sansone says taking legal action can in fact pay off in the end.
“I think there are some historical examples that prove that this model of bringing lawsuits against the manufacturers to help recoup or offset treatment costs actually works,” he says, citing a lawsuit by the State of New Hampshire brought against Exxon Mobil and other oil companies for MTBE contamination of groundwater. In that case, hundreds of millions in damages eventually went into a fund that water systems could then access.
“That’s a statewide example, but my strong feeling is that the availability of those kinds of funds has at least stopped rates from going up a lot more,” he says. “We’ve also represented dozens of individual water systems that have sued that manufacturer of other products that have caused contamination, and they’ve been able to take that money and use it to offset treatment plant costs.”
Treatment & Mitigation
Another angle to the PFAS issue is the treatment process itself. What will need to change and how extensive could necessary upgrades for drinking water systems be?
Because of the chemical properties of PFAS, researchers have found that certain technologies are better able to remove some PFAS from drinking water than others, specifically PFOA and PFOS.
EPA’s proposed National Primary Drinking Water Regulation would give water systems the flexibility to determine the best actions and approaches to dealing with their specific situation with regards to PFAS. The agency has identified these methods as the best available technologies:
- Granular activated carbon (GAC)
- Anion Exchange (AIX)
- Nanofiltration (NF) and Reverse Osmosis (RO)
A process referred to as adsorption by granular activated carbon is considered perhaps the best available technology by EPA and state health departments to treat PFAS in water. The process involves flowing the water through a bed of activated carbon that removes contaminants in a way similar way to how a magnet would grab on to iron filings. Once the GAC exhausts its capacity, the media is then put through a high temperature thermal reactivation process that further removes and destroys contaminants like PFAS to >99.99 percent.
A well-designed GAC system is able to treat PFAS to non-detect, which would satisfy the less than 4 parts per trillion requirement from EPA, as well as remove disinfection byproducts, algal toxins and taste and odor, according to Calgon Carbon, a manufacturer of a range of water purification solutions using activated carbon.
“It’s extremely effective,” says John Matthis, director of global business development and global PFAS team leader at Calgon Carbon. “Activated carbon is unique in that not only is the technology able to remove PFAS from the water, but through appropriate reactivation, we destroy the PFAS and allow the activated carbon to be reused. This contrasts with other technologies that require additional disposal or treatment of PFAS laden materials that can add significant additional cost. In addition to PFAS, you can meet a whole host of regulatory requirements just from an activated carbon process alone.”
Calgon Carbon has been working on treating drinking water for PFAS contaminants for more than 20 years, so for them, this is not new. And Matthis adds that the EPA’s proposed MCLs could be a driver for the use of activated carbon in municipal water treatment.
“I think we’re still trying to understand the magnitude of the situation, but it remains very positive looking forward as far as activated carbon and its use in municipal water applications,” he says. “We are significantly expanding our production to meet the growing market needs for high performing activated carbon.”
It’s just one example of a technology potentially positioned for growth under EPA’s proposed MCLs for PFAS in drinking water. Going forward, utilities will need to begin determining their PFAS strategy and to what extent they will need to make changes to meet the proposed standards.
Andrew Farr is managing editor of Water Finance & Management, published by Benjamin Media in Richfield, Ohio. He has covered the water sector in North America for 10 years and also covers the North American trenchless construction industry for sister publication Trenchless Technology.
