Client Alert- EPA Proposes Drinking Water Standard

On March 14, 2023, the U.S. Environmental Protection Agency (EPA) announced it is proposing a national drinking water standard for six polyfluoroalkyl substances (PFAS). PFAS chemicals are found in many products including food packaging, non-stick cookware, and fire-fighting foam. This proposal represents the latest step in the EPA plan to address the presence of PFAS in public water supplies. The action follows the EPA’s proposal to designate two types of PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which was the subject of an earlier Aleshire & Wynder Client Alert.

The new proposed regulation would add certain PFAS chemicals to the National Primary Drinking Water Regulations (NPDWR), establishing standards for the presence of (1) perfluorooctanoic acid (PFOA), (2) perfluorooctane sulfonic acid (PFOS), (3) perfluorononanoic acid (PFNA), (4) hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), (5) perfluorohexane sulfonic acid (PFHxS), and (6) perfluorobutane sulfonic acid (PFBS) in drinking water.

The proposed regulation requires public water systems to monitor for the relevant PFAS substances. If regulated PFAS substances in drinking water exceed the standards in the proposed regulation, water systems will be required to notify the public and reduce PFAS levels to below the threshold defined by the regulation.

Under the proposed NPDWR, the concentration of either PFOA or PFOS must be below 4 parts per trillion. The combined concentration of PFNA, PFHxS, PFBS, and GenX chemicals must remain below a level defined by a “hazard index calculation” laid-out in the proposed regulation.

The regulation poses the specter of increased costs for public agencies and rate-payers. However, possible sources of funding for some water purveyors include the Bipartisan Infrastructure Law, the Drinking Water State Revolving Fund (DWSRF), and the EPA’s Emerging Contaminants in Small or Disadvantaged Communities Grant Program.

The EPA will hold an informational webinar about the proposed PFAS NDPWR on March 29, 2023 for water utilities, and the EPA will hold a virtual public hearing on May 4, 2023.

The public comment period closes 60 days after publication of notice in the federal register. Written comments must be submitted via the public docket at: www.regulations.gov under Docket ID: EPA-HQ-OW-2022-0114.