United States: U.S. EPA Finalized PFAS Drink Water Standards — Now What?

In what should come as a surprise to no one, on April 10, 2024, U.S EPA finalized its National Primary Drinking Water Regulation for six per- and polyfluoroalkyl substances ("PFAS"). These final standards are summarized below:

Public water systems ("PWS") will have three years to complete initial monitoring for these six specific PFAS to be followed by ongoing compliance monitoring. If found in the drinking water above these standards, the PWS will have five years (2029) to implement solutions to reduce the PFAS to below these regulatory levels and provide public notification of the exceedance.

But what do these new PFAS drinking water standards really mean for the regulated community? We already know that as a result of data being collected in connection with U.S. EPA's Fifth Unregulated Contaminant Monitoring Rule, PFOA and PFOS have been found in more than ten percent of the PWS that were required to sample and there is no reason to believe that this trend will be any different once all PWS are required to sample for these specific six PFAS.

Notwithstanding recent court approval of the multi-billion-dollar settlement with public water utilities, to the extent that any of these six PFAS are identified above the recently promulgated regulatory levels, impacted PWS are still likely to cast a wide net looking for other entities to contribute to the costs to address the PFAS-impacted drinking water. And U.S. EPA's ongoing efforts to implement its PFAS Strategic Roadmap will continue to generate data that can be relied on by PWS in searching for additional "responsible parties".

For example, in November 2023, U.S. EPA finalized a rule eliminating the de minimis exemption for reporting for 189 PFAS in Toxic Release Inventory ("TRI") reports. U.S. EPA estimated that by eliminating the de minimis reporting exemption, an additional 2,000 companies would be required to file TRI reports on PFAS releases into the environment. Similarly, U.S. EPA's recently promulgated PFAS Reporting Rule under the Toxic Substances Control Act requires companies to provide data on PFAS in consumer and industrial products dating back to 2011. The rule requires that any entity that manufactured or imported PFAS, PFAS-containing articles, PFAS in mixtures, byproducts or as an impurity, provide specific information regarding PFAS uses, production volumes, disposal, exposures, hazards and environmental and health effects. There is no de minimis reporting threshold under this rule.

So there will soon be a lot of information flooding the public arena regarding historical and ongoing uses of PFAS that will likely be mined by PWS and other entities seeking to find potentially responsible parties to contribute to the costs to remediate PFAS-impacted drinking water. In order to both mitigate risk and ensure compliance with applicable reporting requirements, companies would be well served to carefully audit their supply chain to identify potential PFAS uses. Of course, that can pose a challenge where the PFAS might not be disclosed on safety data sheets or where there is uncertainty regarding what actually constitutes a PFAS.

We will continue to monitor and report on new PFAS developments at the Corporate Environmental Lawyer Blog.

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