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The United States Environmental Protection Agency (“EPA”) on March 14th issued proposed Safe Drinking Water Act (“SDWA”) National Primary Drinking Water Standards for six PFAS which include:

• Perfluorooctanoic acid (PFOA)
• Perfluorooctane sulfonic acid (PFOS)
• Perfluorononanoic acid (PFNA)
• Hexafluoropropylene oxide dimer acid (HFOP-DA)
• Perfluorohexane sulfonic acid (PFHxS)
• Perfluorobutane sulfonic acid (PFBS)

(collectively, “PFAS”)

PFAS consist of a large group of man-made chemicals. Their properties include resistance to heat, water, and oil. They have been described as persistent in the environment and resist degradation.

The compounds have been used in a number of commercial and industrial applications such as:

• Fabrics for furniture
• Paper packaging for food and other materials resistant to water, grease, or stains
• Firefighting at airfields
• Utilization in a number of industrial processes
• A number of consumer products

Potential human exposure to PFAS includes pathways through drinking water, air, or food.

The SDWA is the federal law that protects drinking water supplies. The statute requires that EPA identify drinking water contaminants. The federal agency is then required to develop rules that either set maximum permissible levels for the contaminants or establish protocols to treat the water to minimize the levels of the contaminant. All owners or operators of public water systems are required to comply with the primary (health-related) standards.

The states can be delegated the ability to enforce their requirements established by the SDWA. The Arkansas Department of Health implements this program in Arkansas.

The EPA proposed rule for PFAS will require public water systems to:

• Monitor for the identified PFAS
• Notify the public of the levels of these PFAS
• Reduce the levels of these PFAS in drinking water if they exceed the proposed standards

In particular, EPA is proposing an enforceable maximum contaminant level for:

• PFOA and PFOS as four parts per trillion (referenced as a level that can be reliably measured)
• An enforceable limit on a combination of PFNA, PFHxS, PFBS, and GenX chemicals, which is described as placing limits on any mixture containing one or more of PFNA, PFHxS, PFBS, and/or GenX chemicals (i.e., water systems are stated to use an approach called a hazard index to determine if the combined levels of these PFAS pose a potential risk.)

The SDWA standards for PFAS will have implications for others besides public water systems. For example, the Comprehensive Environmental, Compensation, and Liability Act (i.e., Superfund) requires remedial actions to achieve a level of cleanup that would attain MCLs established for current or potential sources of drinking water under the SDWA. In addition, public owned treatment works and wastewater treatment plant operators have expressed concern that their passive receipt of materials of PFAS could jeopardize their ability to land apply some biosolids. Similar concerns apply to landfills that are also passively receiving materials that may contain PFAS.

A link to the final rule can be found here.