In my February 3, 2023 blog post, I discussed the United States Environmental Protection Agency’s (“EPA”) announcement that addressing per- and poly-fluoroalkyl substances (“PFAS”) contamination would be part of its National Enforcement and Compliance Initiatives for fiscal years 2024-2027, and that announcement’s relation to the “2021 PFAS Strategic Roadmap,” which is a set of policy goals for greater monitoring and regulation of PFAS.
An MCL is the maximum level of a contaminant allowed in water that is delivered to any user of a public water system.
On March 14, 2023, the EPA took the next step in efforts to combat PFAS contamination by proposing maximum contaminant levels (“MCLs”) and maximum contaminant level goals (“MCLGs”) for six PFAS compounds, including the two most well-known PFAS compounds perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonic acid (“PFOS”). An MCL is the maximum level of a contaminant allowed in water that is delivered to any user of a public water system. An MCLG, on the other hand, is the maximum level of a contaminant in drinking water at which no known or anticipated adverse health effect would occur.
The regulation proposed by the EPA on March 14, 2023, would set the MCL for PFOA and PFOS at four parts per trillion (ppt). If finalized, the four ppt MCL would be the lowest the EPA has ever set for any drinking water contaminant, except dioxin (which has an MCL of .03 ppt). As the proposed four ppt MCLs are lower than any state-issued MCLs to date, states will have to adjust and implement the same or a stricter standard. The EPA’s proposed regulation would set the health-based Maximum Contaminant Level Goals (MCLGs) for both PFOA and PFOS at zero. To this end, the EPA’s FAQ for Drinking Water Primacy Agencies issued on March 14, 2023, explains “that there is no level of these contaminants that is without a risk of adverse health effects,” that “PFOA and PFOS are likely carcinogens,” and that MCLGs of zero are used for substances “for which there is insufficient information to determine that a carcinogen has a threshold below which there are no carcinogenic effects.”
As the proposed four ppt MCLs are lower than any state-issued MCLs to date, states will have to adjust and implement the same or a stricter standard.
Under the proposed rule, drinking water systems would be required to monitor for PFAS compounds and notify the public if monitoring detects PFAS above the prescribed MCLs. Water systems with PFAS levels that exceed MCLs (once finalized) would be required to take remedial actions, such as installing treatment systems or switching to an alternative water supply. While activated carbon, anion exchange (“AIX”), and high-pressure membrane technologies have been demonstrated to remove PFAS from drinking water systems, they are expensive from both an initial capital cost and ongoing operational and maintenance expense standpoint. Indeed, according to EPA analyses, clean-up activities to lower contamination to below the four ppt MCL (the lowest concentration that PFOA and PFOS can be reliably quantified with EPA-approved methods) will likely cost water systems several hundreds of millions of dollars. While public water systems are ultimately responsible for MCL compliance, they most certainly will seek contribution or cost-sharing from manufacturers and users of PFAS who contributed to the presence of PFAS in the water. This is likely to spawn a new generation of contentious and expensive environmental litigation.
While public water systems are ultimately responsible for MCL compliance, they most certainly will seek contribution or cost-sharing from manufacturers and users of PFAS who contributed to the presence of PFAS in the water.
EPA’s proposal for PFAS-related MCLs and MCLGs will generate significant comments from the regulated community during the 60-day comment period that will open once the proposed rule is published in the Federal Register. Further, the EPA, in recognition that its proposed rule, if finalized, will have very real and wide-reaching consequences, has stated that water systems will have three years from the date of the final rule to come into compliance with the new MCLs.
This is likely to spawn a new generation of contentious and expensive environmental litigation.
As this process plays out, interested parties can be proactive by, among other things, submitting comments on the proposed rule and assessing processes and waste streams to determine whether PFAS compounds are present and, if so, what mitigation options might be available.
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Warren A. Koshofer is a principal in the firm’s Commercial Litigation, Environmental, and Insurance practice groups. Mr. Koshofer focuses his practice on business, commercial, environmental, insurance, intra-company, real estate, and toxic tort construction-related litigation matters, as well as on due diligence, indemnification, and risk management relating to commercial or industrial real estate transactions or company mergers and acquisitions involving such real estate assets and/ or potential environmental liabilities. He represents clients at the state, federal, trial, and appellate court levels, including Fortune 100 companies, partnerships, and high-profile individuals. He also handles matters before administrative law courts, regulatory agencies, and alternative dispute resolution forums nationwide. Mr. Koshofer has consistently been recognized by Martindale Hubbell as an AV (preeminent) peer-rated attorney and by Super Lawyers and Who’s Who in Law.