EPA Closing in on Drinking Water Regulations

The expected economic consequences and federalism implications of proposed PFAS MCLs

May 09, 2023 Photo

The U.S. Environmental Protection Agency in late March issued a Notice of Proposed Rulemaking titled, “PFAS National Primary Drinking Water Regulation Rulemaking.” In keeping to its commitments in the PFAS Strategic Roadmap, the EPA took a significant step by proposing to establish legally enforceable drinking-water levels for six per- and polyfluoroalkyl substances (PFAS) known to occur in drinking water: PFOA, PFOS, PFHxS, GenX Chemicals, PFNA, and PFBS. The proposed rules will be open for public comment until May 30.

Under the Safe Drinking Water Act (SDWA), EPA has the authority to set enforceable National Primary Drinking Water Regulations (NPDWRs) for drinking-water contaminants and require monitoring of public water supplies. The EPA proposes to set individual Maximum Contaminant Levels (MCLs) of four parts per trillion for PFOS and PFOA. An MCL is an enforceable regulatory level for public drinking water systems established as close as is feasible to the Maximum Contaminant Level Goal (MCLG), taking costs into consideration [see 42 U.S.C. § 300g–1(b)(4)(B)]. EPA proposes to set the MCLG at zero for these two substances.

In addition to its proposed MCLs for PFOA and PFOS, EPA proposed a Hazard Index for PFHxS, GenX Chemicals, PFNA, and PFBS. “A Hazard Index helps to account for the increased risk from mixtures of PFAS that may be found in contaminated drinking water,” according to the EPA. The Hazard Index “considers how toxic each of the four PFAS are and allows a site-specific determination based on the specific drinking water concentrations.”

EPA’s proposed rule would require public water systems (PWS) to conduct initial monitoring within three years after the rule’s promulgation. If capital improvements are required, utilities may request an additional two years to comply. Based on their size and source water, systems would have to conduct initial monitoring, either twice or quarterly, during a 12-month period. The proposed rule is also accompanied by an economic analysis that addresses feasibility of analysis and treatment, and cost and benefit considerations. That analysis has been the subject of scrutiny, which will continue through the rule’s comment period.

In support of the MCL proposals, EPA’s economic analysis presents the “quantified and nonquantifiable” health benefits expected from reductions in PFAS exposures through the proposed rule. Quantified benefits are assessed as avoided cases of illness and deaths associated with exposure to PFAS contaminants. On the other hand, the estimated costs associated with the proposed NPDWR include expenses incurred by PWSs to:

  • Monitor for PFAS.
  • Inform consumers.
  • Install, operate, and maintain PFAS treatment technologies, including treatment media replacement and spent media destruction or disposal.
  • Perform record-keeping and reporting to comply with the PFAS NPDWR.
  • Implement the rule (costs incurred by states).

EPA also expects that costs may arise from non-treatment actions taken by some PWSs, such as constructing new wells in an uncontaminated aquifer or interconnecting with and purchasing water from a neighboring PWS. In addition, the economic analysis acknowledges that it underestimates costs in situations where occurrence data is limited, including data on certain of these PFAS, such as PFNA, PFBS, and HFPO-DA.

EPA estimated the total annualized costs of the proposed rule would range from $772 million to $1.2 billion, while the economic benefits would range from $908 million to $1.2 billion. However, industry groups believe that the costs associated with the proposed standards would exceed the additional funding provided by the agency. The American Water Works Association (AWWA) said the proposed rule would require more than 5,000 water systems to develop new water sources or install advanced treatment technologies. Another 2,500 water systems in states with established standards would need to adjust their existing PFAS treatment systems.

A study released by AWWA on March 7 found that the estimated national cost for water systems to install treatment systems to remove PFOA and PFOS to levels required by the EPA proposal would exceed $3.8 billion annually. AWWA said “The vast majority of these treatment costs will be borne by communities and ratepayers, who are also facing increased costs to address other needs, such as replacing lead service lines, upgrading cybersecurity, replacing aging infrastructure and assuring sustainable water supplies.”

There are also concerns that EPA’s cost estimates do not include costs of compliance with non-drinking water regulations that may be triggered by the new drinking water limits. Another organization, the Association of Metropolitan Water Agencies (AMWA), believes that “without more federal support for upgrading current treatment technologies, average Americans will have to pay the cost of further treatment through higher rates for their water.”

Relatedly, EPA has concluded that this proposed rule has federalism implications because “it imposes substantial direct compliance costs on state or local governments, and the federal government will not provide the funds necessary to pay those costs.” However, federal funding may be available for many communities to address PFAS in their drinking water; the Bipartisan Infrastructure Law provides up to $9 billion for communities impacted by PFAS and other emerging contaminants.

A number of states, for example Massachusetts, New Jersey, New York, Vermont, New Hampshire, and Michigan, had previously adopted MCLs on PFOA, PFOS, and other PFAS compounds like PFHxS, PFHpA, PFNA, PFBS, PFSA. The US EPA’s new proposals, though, are stricter than any regulated levels in these states. If the final NPDWR goes into effect, states will then be required to have a standard that is no less strict than the NPDWR in accordance with the requirements of the SDWA. That may require water authorities to expend additional costs not planned for in their previously promulgated state level restrictions. For those states that have no regulations, they will be required to commit resources to come into compliance with EPA’s national MCLs. 

Although the proposed rule will be limited to public water systems, it will likely have economic repercussions across many industries that touch PFAS beyond just contamination areas, and not to mention potential federalism and state-level funding concerns.

About The Authors
Oliver E. Twaddell

Oliver E. Twaddell is a partner in Goldberg Segalla’s Toxic Tort/Environmental and Commercial Litigation practice groups.  otwaddell@goldbergsegalla.com

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CLM’s Environmental and Toxic Tort Committee focuses on existing and emerging issues in the environmental, pollution, and mass tort context. This encompasses long-tail claims as well as claims submitted on currently issued policies.

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