Clear Expectations: Grasping the Implications of the EPA's First-Ever PFAS Drinking Water Regulations/Standards

The Environmental Protection Agency (“EPA”) recently issued national and legally enforceable drinking water standards for per- and polyfluoroalkyl substances (“PFAS”), achieving first-of-its-kind guidelines and setting lofty expectations to protect human health. These synthetics, coined "forever chemicals” due to their ubiquitous and bio-persistent nature, were once touted for their heat and grease- resistant, water- repellant, and nonstick attributes and, accordingly, have been used widely by manufacturers and the military for decades. In a post-Flint, Michigan world, where the EPA and the public have heightened concerns about the safety of drinking water, allegations that PFAS are causally linked to cancer, autoimmune disease, and birth defects triggered a surge of environmental harm and personal injury cases. The EPA’s bold new standards reflect growing concerns over public health and the environment and are expected to have wide-reaching effects across various sectors, including municipalities, manufacturers, and insurers.

The New Drinking Water Standards

The EPA set Maximum Contaminant Levels (MCLs), nationally enforceable standards, for five individual forever chemicals. The strictest limits, at four parts per trillion (ppt), are for the two most widely studied PFAS chemicals – PFOA and PFOS. The EPA went even further to set an MCL Goal, a non-enforceable health-based goal, for PFOA and PFOS, at zero to reflect current scientific data that suggests there is no level of exposure to these two contaminants without risk of harm. Three other PFAS, of the thousands of potential PFAS chemicals identified to date,  including PFNA, PFHxS, and HFPO-DA (GenX chemicals), will be limited to 10 ppt. Under the new regime, an MCL was also established for combined levels of PFNA, PFHxS, PFBS, and GenX chemicals. Reflecting the administration’s agenda to prioritize tackling PFAS, these new federal standards for PFOA and PFOS are nearly seventeen times more stringent than the drinking water standards of previously imposed by some states.

Implications for Public Health

The EPA’s historic PFAS drinking water standards are perceived by many as a significant victory for public health. These new standards are expected to significantly reduce PFAS exposure in drinking water for an estimated 100 million Americans. While eleven states, (Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin), implemented PFAS drinking water standards before the EPA’s recent announcement, a majority of states had imposed PFAS standards limited to groundwater only. With the EPA’s new drinking water standards for PFAS, all states must either play catch up or step up their regulatory efforts and reduce PFAS thresholds in their drinking water where they exceed regulatory standards. Water systems that detect PFAS above the EPA’s new standards will have five years to implement solutions that reduce PFAS in their drinking water. However, they must notify the public if levels of regulated PFAS exceed the EPA’s new MCL thresholds. 

Implications for Municipalities

Municipalities, which manage local water systems, face significant challenges due to the aggressive new standards. Public water systems will now be required to test for these six PFAS types. Many municipalities will need to upgrade infrastructure or implement advanced water treatment technologies, which may be financially taxing. These upgrades are crucial for compliance but may require increased local taxes or utility bills to fund the necessary changes. The EPA acknowledges the challenges of implementing these standards and is providing $1 billion in grants to states and territories to support testing and treatment infrastructure. The new rule does introduce a phased timeline for compliance:

• 2024-2027: complete initial monitoring for PFAS
• 2027-2029: include initial monitoring results in public reports and notify of any exceedances
• 2029 and beyond: ensure full compliance with all MCLs and notify the public of any violations.

Implications for Industry

In the wake of the EPA’s new PFAS drinking water standards, manufacturers that produce chemicals or products containing PFAS will now face stricter regulations and oversight. Compliance with these standards will necessitate the development of cleaner technologies or reformulating products, leading to potentially higher operational costs. However, this could also drive innovation in product development and pollution control technologies. Likewise, manufacturers and retailers using PFAS, or PFAS components, in their products or packaging will likely face pressure to find safer alternatives. Overall, the new regulations may lead to increased costs and litigation for industries found to discharge PFAS into waterways.

Implications for Insurers

For the insurance industry, the EPA’s new PFAS drinking water regulations may shift liability coverage and risk assessment practices. Insurers may see increased claims related to health issues and environmental property damage tied to water contaminants. Conversely, there could be opportunities to develop new insurance products that address the specific risks associated with water pollution and regulatory compliance.

The Road Ahead

The EPA’s new PFAS drinking water standards signal a significant shift towards improving and policing water quality and protecting public health. While these changes promise substantial health benefits, they impose new challenges and costs on municipalities, industries, insurers, and other economic sectors. Effective implementation will likely depend on a collaborative effort between government bodies, private industries, and the public to ensure that the benefits of cleaner, safer water are realized without disproportionately burdening any single group.