Clark Mindock
(Reuters) – The U.S. Environmental Protection Agency has finalized the first federal rules on toxic “forever chemicals” in drinking water, setting tough limits that essentially require public water supplies to almost completely eliminate their presence in American tap water.
The long-awaited rules target six per- and polyfluoroalkyl substances, or PFAS, that are commonly used in thousands of commercial and consumer products such as semiconductors, fire-fighting foams and stain-resistant fabrics.
PFAS are known as forever chemicals because they do not break down easily in the environment or the human body and have been linked to cancer and other health problems.
This is what you need to know.
WHAT DOES THE RULE DO?
The EPA rule issued Wednesday under the Safe Drinking Water Act sets strict limits ranging from 4 to 10 parts per trillion for five individual types of PFAS and includes limits for several other PFAS if they are present in water in combination.
All public water systems have three years to complete monitoring of these chemicals and must inform the public about the levels of PFAS measured in their drinking water.
In cases where PFAS levels are found in quantities exceeding standards, water systems are required to take steps to reduce PFAS levels in drinking water within five years.
HOW DOES THIS RULE COMPARE WITH OTHER PFAS REGULATIONS?
The rule is the most aggressive regulation under the EPA’s so-called PFAS Roadmap.
The agency previously strengthened requirements for manufacturing facilities to report their use and disposal of PFAS and issued a rule prohibiting companies from using PFAS in new manufacturing processes without EPA approval, among other things.
Going forward, the agency is expected to finalize rules designating at least two PFAS as hazardous substances under the U.S. Superfund law, which could expose many industries to potential cleanup liability.
ARE THERE LIKELY LEGAL ISSUES TO THE RULE?
Legal experts say lawsuits to block the rule will likely be filed by manufacturers, business groups and perhaps the water systems themselves.
Petitioners will likely argue that the EPA regulations were developed without adequate consideration of the cost of compliance or without sufficient evidence to support the need for the regulations, in violation of the requirements of the Safe Drinking Water Act and federal administrative law.
The National Association of Manufacturers, the American Chemistry Council and the U.S. Chamber of Commerce said in comments last year on the draft rule that it overstates the benefits of the restrictions while underestimating the costs. Water utility industry groups said in comments that compliance could cost water systems billions of dollars.
Texas, which has frequently challenged the Biden administration’s rules in court, called elements of the rule “overly simplistic” and said it would be difficult for small water systems to comply given the costs.
HOW WILL THE RULE BE ENFORCEED?
The Safe Drinking Water Act gives most states basic enforcement authority to enforce drinking water standards. The EPA typically intervenes when states fail to enforce requirements or are otherwise unsuccessful in enforcing requirements.
State and federal regulators can issue administrative orders outlining steps to bring water systems into compliance with standards, bring lawsuits, or fine water systems that do not meet standards. Experts say any future fines will likely come after several years and multiple warnings.
Citizens can also sue the government or water systems under the law to enforce compliance.
CAN THE STANDARDS SUPPORT EXISTING LAWSUITS?
Lawsuits filed by hundreds of water systems against chemical manufacturers accusing them of negligence and creating a nuisance by contaminating their water with PFAS have already resulted in large settlements.
Last year, 3M entered into a $10.3 billion agreement with water utilities across the U.S. that will help pay for cleaning drinking water contaminated with PFAS, while DuPont de Nemours (NYSE:) Inc., Chemours and Corteva (NYSE:) entered into a similar deal valued at $1.19 billion.
The settlements were part of a wide-ranging multidistrict litigation (MDL) in South Carolina federal court, where other pending lawsuits against manufacturers could ultimately bring in more money for water systems.
The new rule could provide relief to water systems that are suing or considering suing companies that produce or use PFAS near them for contaminating waterways with the chemicals. Legal experts say that’s because the rules create an unambiguous standard for what levels of PFAS in drinking water are acceptable, and thus could make it easier for water systems to prove they were harmed by contamination.