Announcing PFAS Drinking Water Standard, Moves to Designate PFAS as Hazardous Substance Under CERCLA

Earlier this month, the Environmental Protection Agency (“EPA”) announced the final National Primary Drinking Water Regulation (“NPDWR”) for a group of previously emerging contaminants, per-and polyfluoroalkyl substances (collectively known as “PFAS”). The NPDWR establishes legally enforceable levels, called Maximum Contaminant Levels (“MCLs”), for PFAS in drinking water. 

The NPDWR maintains limits of 4 parts per trillion for two PFAS compounds, perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”). This is a notable departure from the EPA’s November 2016 guidance that recommended action if concentrations greater than 70 parts per trillion were detected in public water system sampling. Additionally, the NPDWR includes new limits for four additional PFAS compounds.

Known as “forever chemicals,” PFAS are a category of chemicals that do not break down in the environment, and are characterized by their ability to repel oil and water, and resist heat. PFAS are manufactured, sold, and applied to products to make them stain-resistant, water-repellent, or grease-proof, and since the 1940s has been utilized in numerous industries and commercial products. However, exposure to PFAS over extended periods has been linked to adverse health outcomes.

All public water systems in the United States will be expected to comply with the NPDWR, and will have three years to complete initial monitoring for PFAS. Monitoring will need to be maintained until the systems meet target MCLs. Those systems with contamination exceeding the MCLs will be required to take steps to reduce the presence of PFAS in their water supplies within five years. At the three and five year marks, the public water system facilities are required to inform the public regarding the levels of PFAS in the public water systems and any solutions implemented to reduce those levels. 

And last week, the EPA took additional action to designate PFOS and PFOA as hazardous substances under Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). This designation will require immediate action where releases of PFOS and PFOA meet or exceed the criteria set by the EPA, and may result in enforcement action. It is important for the development community to understand the impacts of the EPA’s latest efforts to address PFAS, and how such actions are likely to affect development activities. 

Bilzin Sumberg’s team of experienced environmental practitioners will continue to work with clients and consultants to ensure an understanding as to the effects of PFAS in drinking water, and will share additional details about the designation of PFOS and PFOA as hazardous substances under CERCLA in the near future.