EPA PFAS Regulations: Updated Timelines & What to Do Now

In December 2023, the United States Environmental Protection Agency (EPA) released updated timelines for the finalization of its first-ever enforceable standards for PFAS. This highly anticipated announcement marks the next step in the EPA's efforts to protect drinking water, the environment, and public health from the risks of PFAS. However, these new regulations may also present challenges for drinking water and wastewater utilities, as compliance will likely require a significant investment of time and financial resources.

To say that PFAS issues are currently a hot topic for water and wastewater systems would be an understatement. Over the past several years, utilities nationwide have increasingly been faced with public concern and regulatory uncertainty as the full extent of PFAS contamination becomes better understood. PFAS, or per- and polyfluoroalkyl substances, are a category of synthetic chemicals associated with a range of health concerns such as birth defects, cancers, thyroid disease, elevated cholesterol, and other conditions. Because of their durable, waterproof, and nonstick qualities, PFAS have been used in many industrial and consumer products. These compounds’ inability to break down in the environment over time has caused many to refer to them as “forever chemicals.” The largely unregulated manufacture and use of these products over several decades has led to widespread contamination, with detectable levels of PFAS found in soil, water supplies, and even in humans.

In this blog post, we will discuss the anticipated timelines for the upcoming EPA water regulations and explain the steps that utilities can take now to prepare for compliance.

EPA Drinking Water Standards for PFAS

So far, no national water regulations have been enacted for PFAS. In the absence of federal enforceable standards, several states have opted to impose their own maximum contaminant levels (MCLs) for PFAS compounds, resulting in a patchwork of differing standards across the country. However, that is likely to change soon. In 2021, the U.S. EPA unveiled its PFAS Strategic Roadmap, which outlined the agency's intentions to protect public health and the environment from these dangerous chemicals. As part of this plan, the EPA proposed a National Primary Drinking Water Regulation (NPDWR) for six types of PFAS in drinking water on March 29th, 2023.

What are the Proposed EPA Water Regulations for PFAS?

The proposed MCLs for each compound are as follows:

• Perfluorooctane sulfonic acid (PFOS): 4 parts per trillion (ppt)
• Perfluorooctanoic acid (PFOA): 4 ppt

• Perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA/GenX), perfluorohexane sulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS): Calculated using a hazard index.

SDWA Timeline for PFAS Regulations

The EPA's rulemaking process for drinking water is long and complex, and the agency is bound by the Safe Drinking Water Act (SDWA) to finalize regulations within specified timelines. Closely following these timelines can help utilities anticipate and plan for the impending rules.  

According to the most recent updates, the EPA is expected to finalize its PFAS standards by January 2024. Once the rules are made final, public drinking water systems will have a limited time to achieve compliance. While it is still possible for these anticipated timelines to change slightly, the EPA is required by statute to promulgate drinking water standards within 18 months after an NPDWR is proposed. Since the EPA proposed the new rules in March 2023, the legal deadline for these standards is September 2024. This means that, even if the expected January 2024 date is postponed, the agency will be obligated to finalize its standards by September 2024. With this in mind, utility leaders may want to begin creating a plan of action if they have not already done so.

EPA PFAS Hazardous Substance Designation

In addition to the proposed EPA drinking water standards, the agency has also proposed the designation of PFOA and PFOS, two common PFAS compounds, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA, also known as the Superfund, aims to increase transparency around the release of hazardous substances in water and other natural resources.

When Will the CERCLA Designation be Finalized?

The EPA's latest timeline update indicated a commitment to finalize the hazardous substance designation for PFOA and PFOS by March 2024. A CERCLA designation would require entities that discharge these compounds to report contaminant levels above a set threshold to the National Response Center and the appropriate local authorities. This could lead to further investigations, cleanups, and required public notifications of contaminated areas. These requirements would apply to any clean water utilities with PFAS detections in their effluent, resulting in potential challenges. Systems that begin preparing for treatment before PFAS chemicals are listed as hazardous substances in water will be at an advantage.

Preparing for the Upcoming EPA Guidelines

Recognizing that both SDWA and CERCLA regulations are likely to be finalized in the early months of 2024, both drinking water and wastewater systems can benefit from planning ahead. Since traditional drinking water treatment methods cannot successfully remove or destroy PFAS, new treatment facilities will need to be built to ensure that the levels of contaminants do not exceed new MCLs. Furthermore, ongoing testing, maintenance, and staff training will be necessary to ensure that contaminant concentrations remain below reporting levels. These measures will require significant financial resources.

Treating wastewater to reduce or eliminate PFAS can be an even more costly endeavor. As with drinking water, the typical wastewater treatment process does not remove or destroy PFAS. Several effective methods have been identified for the treatment of PFAS in wastewater and biosolids. Regardless of the methods used, the cost of managing PFAS in wastewater is likely to put stress on utility budgets.

Whether a utility's PFAS concerns relate to drinking water or wastewater, the time to act is now. With proper planning, utilities can demonstrate their commitment to the health and well-being of ratepayers by maintaining compliance with EPA guidelines.

Steps Utilities with PFAS Contaminants Can Take Now

It is clear that 2024 will be a pivotal year in terms of PFAS regulatory action. By learning about the options available to them and responding as soon as possible, utilities can avoid the need to scramble once the new standards take effect. Testing for contaminants, exploring treatment technologies, and evaluating funding sources ahead of time can help systems implement mitigation strategies sooner, avoiding the consequences of noncompliance once PFAS regulations become active.

In addition, proactive utilities may be able to take advantage of more comprehensive cost recovery strategies, protecting ratepayers from the high cost of PFAS management. One solution that has benefited many systems so far is litigation, which allows utilities to seek to hold manufacturers accountable for the pollution caused. This strategy has already proven effective for public water systems across the country, which have been offered settlements worth billions of dollars in total from PFAS manufacturers 3M and DuPont to cover the cost of removing the contaminants from water supplies. Now, many wastewater systems are following the example of drinking water providers by filing lawsuits of their own. It is important to keep in mind, however, that the legal process can be complex and difficult to navigate. Regardless of a utility's unique needs, its first step should be to seek advice from a law firm experienced in water contamination litigation. An attorney with experience in this area can help systems evaluate their legal options and choose the best path forward to maximize their potential cost recovery.

Seek Guidance for Your Utility

As the EPA's impending PFAS regulations loom, it is crucial for utilities to understand the potential implications and take necessary steps to prepare. Within the first months of 2024, the EPA is expected to finalize both the national MCLs for six PFAS chemicals and the CERCLA hazardous substance designation for PFOA and PFOS. Both developments will require significant changes in how utilities address PFAS. Now is the time to take initial steps, such as evaluating your system's contamination management needs and exploring cost recovery solutions. If you have questions or would like to learn more about the legal cost recovery options available to drinking water and wastewater systems, please schedule a free consultation with our legal team.