By Brian Redder
The U.S. Environmental Protection Agency (EPA) continues to execute actions outlined in its PFAS Strategic Roadmap, released in October 2021, to address issues related to PFAS contamination.
Drinking water and wastewater utilities have played no role in producing, using or profiting from PFAS being placed into commerce, and yet will be expected to remove and dispose of it at significant cost. Unfortunately, this shifts away from the “polluter pays” model and transfers those burdens onto the public. With the upcoming proposal expected for PFAS regulation in drinking water, utilities will have to comply with the rule while also trying to keep rates affordable for customers.
PFOA/PFOS CERCLA Hazardous Substance Designation
In September, EPA published in the Federal Register it’s proposal to designate PFOA and PFOS as hazardous substances under CERLCA. The water sector has repeatedly called for drinking water and wastewater systems to be made exempt from CERCLA liability related to PFAS that is properly disposed of after its removal from water supplies. However, EPA does not have the authority under current law to exempt classes of facilities from CERCLA liability, so any permanent fix would likely require an act of Congress.
Under EPA’s proposal, drinking water and wastewater utilities could face unwarranted liability and legal defense costs at Superfund sites, such as landfills or agricultural sites. This would divert vital resources from their primary responsibilities of protecting public health and the environment. Under CERCLA, any party that has contributed in any part to disposing of hazardous substances, even trace amounts, may be held liable for remediation. Therefore, a drinking water system that disposes of water treatment byproducts containing PFAS could be held liable under CERCLA decades later if the disposal location becomes a Superfund site due to PFAS contamination. There has been indication among industry groups that, if finalized as proposed, the rule will be challenged legally.
EPA has indicated it will look at designating more PFAS as hazardous substances under CERCLA, with a possible announcement coming as early as November 2022.
PFAS Health Advisories (HAs)
In June, EPA announced the long-awaited Health Advisories (HAs) for four separate PFAS. HAs are non-enforceable and non-regulatory levels that help inform states agencies and public health officials of health effects of certain chemicals. According to EPA, these HAs are intended to offer a margin of protection to individuals from a lifetime of exposure to these PFAS from drinking water. Final HA determinations were announced for GenX (10 ppt) and PFBS (2000 ppt), as well as interim HAs for PFOA (0.004 ppt) and PFOS (0.02 ppt).
The American Chemical Council (ACC) has filed suit against EPA seeking to vacate the interim HAs for PFOA and PFOS. ACC acknowledges that these interim HAs are non-regulatory but argue that they will still have a significant effect on states. Some environmental groups have intervened to support EPA in the case on mutual interests.
Chemours Co. filed a separate lawsuit against EPAs final HA for GenX. The company alleges that EPA did not follow the appropriate science and follow proper procedures laid out in the Safe Drinking Water Act.
EPA has asked the court to dismiss both cases, arguing that Chemours, Co. and ACC do not have standing, and in the case of PFOA and PFOS, the actions taken were not final.
National Primary Drinking Water Regulation Rulemaking
EPA is expected to propose regulating at least PFOA and PFOS in drinking water later this fall. With recent HA levels below current EPA method detection limits, many in the water sector have expressed concern about the feasibility of low values with respect to a National Primary Drinking Water Rule (NPDWR). In September, EPA Assistant Administrator for Water Radhika Fox tried to alleviate these concerns by stating that EPA will consider current detection limit capabilities when developing NPDWR for PFOA and PFOS. Fox also acknowledged that the maximum contaminant level goal (MCLG) and maximum contaminant level (MCL) will likely not be the same quantity.
EPA intends to propose a rule in December 2022 and promulgate the rule in Fall 2023. The proposed rule was sent to the Office of Management and Budget on Oct. 6. Typically, these reviews do not last more than 90 days, so EPA expects to meet their self-prescribed December deadline.
Environmental Justice
This Administration has continued to stress the importance of environmental justice considerations in proposed rulemakings. The Government Accountability Office (GAO) recently released a report recommending EPA gather more data nationwide to assess PFAS contamination of drinking water in disadvantaged communities. Disadvantaged communities are often disproportionately burdened by contamination, and more data is needed to understand the extent of this as it relates to PFAS. One source of data that will help close this gap is the fifth Unregulated Contaminant Monitoring Rule (UCMR 5). While results of UCMR 5 will not be available before EPA proposes NPDWR for PFOA and PFOS this Fall, the agency has already asked for input from the public on how environmental justice considerations it can include in the upcoming proposal.
A big aspect EPA will have to address in the rulemaking is affordability. Regulating PFAS means utilities will incur great costs to remove the chemicals in the treatment process, costs that inevitably fall to ratepayers. While there are funds available through the funding programs like Low-Income Household Water Assistance Program to help alleviate costs for water utilities and customers, this program is currently temporary and too many individuals already struggle to keep up with water bills. Federal funding opportunities are still uncertain as the Administration works on implementation of its Justice40 initiative and state implementation of Bipartisan Infrastructure Law funds.
Brian Redder is Manager of Regulatory and Scientific Affairs at the Association of Metropolitan Water Agencies. At AMWA, he manages a portfolio of regulatory and scientific issues relevant to large, publicly owned drinking water utilities. Redder came to AMWA following a time in the United States Senate working on water and environmental policy as part of the NOAA Knauss Fellowship program.
