BLOOMBERG LAW: Limiting P.P.T. PFAS Quite Challenging But Necessary

by Duane Nichols on March 15, 2023

PFAS are very stable organic chemicals, lasting “forever” …

US Plan to Limit PFAS in Water Draws Concern Over Cost, Science

From a Review by Pat Rizzuto, Bloomberg Law, March 15, 2023

The first-ever national drinking water limits for PFAS the EPA proposed Tuesday are raising concerns about the costs to utilities and ratepayers, questions from industry about the science the agency used, and predictions of more litigation over the health effects of the chemicals.

The proposal also should spur controls on upstream sources of the chemicals, according to both a key lawmaker and the Southern Environmental Law Center, a nonprofit environmental legal advocacy organization.

The Environmental Protection Agency proposed a 4 parts per trillion (ppt) enforceable limit on the amount of either perfluorooctanoic acid (PFOA) or perfluorooctane sulfonic acid (PFOS) that could be in drinking water. It also proposed a strategy to limit four additional per- and polyfluoroalkyl substances (PFAS) in drinking water.

VIDEO: PFAS: The ‘Forever Chemicals’

Water utilities would be required to monitor the PFAS, reduce levels exceeding the proposed limits, and notify their customers if the PFAS levels were above the EPA’s limits. The proposed limits, the lowest level many laboratories can reliably detect, are tighter than any states have proposed.

Also known as forever chemicals, some PFAS persist in the environment for years and have been linked to an increase in the risk of various diseases including cancer.

The plans “signal a more aggressive stance on the EPA on regulating these chemicals,” said Stephanie Feingold, a partner at law firm Morgan Lewis specializing in environmental regulations and litigation.

Additional PFAS rules the agency is pursuing include designating two or more PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund law; limiting industrial effluents of the chemicals; and collecting extensive information on PFAS that have been in commerce for more than a decade.

The Association of Metropolitan Water Agencies (AMWA) has serious concerns about the cost of this rulemaking, particularly as those costs will potentially fall to ratepayers, said association spokesman Brian Redder.

Cost Concerns ~ The EPA offered treatment options to address the presence of PFAS in drinking water. Granular activated carbon (GAC), anion exchange, high-pressure membrane technologies, reverse osmosis (RO), and nanofiltration can remove the PFAS, the agency’s proposed rule said.

The EPA’s estimated costs for water utilities to comply with its proposal range from $772 million to $1.2 billion, while its estimated benefits range from $908 million to $1.2 billion. Yet treatment expenditures utilities already have incurred suggest the costs could exceed the agency’s estimate, AMWA CEO Tom Dobbins said in a statement.

“For comparison, AMWA member Cape Fear Public Utility Authority’s estimated capital cost for its treatment was $43 million, and its annual operating cost was $3-5 million,” Dobbins said. “If about 16 utilities of similar size to Cape Fear nationwide had to implement comparable treatment techniques, the total cost would exceed EPA’s estimate,” of $772 million, he said.

The 2021 infrastructure law provided $10 billion to address emerging contaminants including PFAS in drinking water. “But the costs of meeting the proposed standards will far exceed the additional funding, said the American Water Works Association (AWWA).

More than an estimated 5,000 water systems will have to develop new water sources or install and operate advanced treatment; another 2,500 water systems in states with existing standards will need to adjust existing PFAS treatment systems, it said.

A recent study requested by AWWA estimated the national cost for water systems to install treatment to remove PFOA and PFOS to levels required by the EPA’s proposal exceeds $3.8 billion annually, that association 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,” AWWA said.

Both water associations stressed the need to make sure the EPA used sound science to underpin its proposed limits. “I think there will be litigation,” even before a final rule would be finalized, on both the science underpinning the EPA’s proposal and its strategy to limit the four PFAS, said Jessie Rosell, an environmental attorney with Lathrop GPM’s PFAS practice.

Litigation Outlook ~ Rosell and Feingold described the “hazard index” strategy the agency proposed to use to regulate four PFAS as an unusual approach to limiting drinking water contaminants. The index, a mathematical calculation of whether people’s exposure to contaminants is close to levels that might cause health problems, is more often used as a tool for deciding whether some kind of cleanup or other regulatory action is needed, Feingold said.

Rosell predicted there will be legal challenges to the EPA’s proposal similar to those chemical manufacturers mounted after the agency last June set interim and final health advisories for PFOA, PFOS, and hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt, referred to as the “GenX chemicals” due to the technology that produces them.

The US Court of Appeals for the D.C. Circuit dismissed for lack of standing the challenge the American Chemistry Council brought against the agency’s interim health advisories for PFOA and PFOS. But the Chemours Co.’s challenge to the agency’s final GenX health advisory is proceeding in the US Circuit Court of Appeals for the Third Circuit.

Issues raised in those lawsuits are likely to be raised again, Rosell said. “We have serious concerns with the underlying science” that the EPA used to develop its proposals, ACC said in a statement. It pointed to draft guidance the World Health Organization issued that proposed much higher limits than did the EPA—100 ppt on PFOA and PFOS .

The agency also has not completed its health assessment of two of the six PFAS, the chemistry council said. Those two are perfluorohexane sulfonate (PFHxS) and perfluorononanoic acid (PFNA). The agency’s research office expects it will take until next year for the agency to complete its analysis and then have independent scientists critique it.

“The maximum contaminant levels (MCLs) the EPA sets will become target cleanup levels at Superfund sites and de facto cleanup levels at other sites, which is another reason it’s so important to get the science right,” said Tom Flanagin, an ACC spokesman.

Meanwhile, both Rosell and Feingold said attorneys representing individuals in toxic tort cases could use the science and standards in the EPA’s proposal to bolster their cases, as they’ve already been using the interim and final health advisories the agency set last June.

Plaintiffs in a multidistrict case relating to PFAS in firefighting foam and the Department of Justice on Tuesday alerted the U.S. District Court for the District of South Carolina about the EPA’s proposal.

“EPA determined PFOA and PFOS are likely carcinogens (i.e., cancer causing) and that there is no level of these contaminants that is without a risk of adverse health effects,” according to the filing. “Given that there is no higher regulatory authority than EPA, no prudent water provider can ignore this important safety information even prior to it becoming legally enforceable.”

Disposal, Upstream Releases ~ The EPA’s proposal raises many questions including how drinking water utilities will dispose of spent filters and other equipment they use to remove the PFAS, Feingold said. The technologies the EPA named concentrate the PFAS they remove from drinking water, but then move them into other media, she said.

Rep. Chris Pappas (D-N.H.) said he plans to reintroduce his Clean Water Standards for PFAS Act this year to limit industrial discharges of PFAS into rivers, groundwater and other drinking water supplies.

“States must act now using existing law to protect people and their drinking water,” said Geoff Gisler, a senior attorney with the Southern Environmental Law Center. Michigan has required pretreatment for 59 industrial and other facilities that release PFAS into sewers, according to information the Michigan Department of Environment, Great Lakes, and Energy previously provided Bloomberg Law. Colorado, Michigan, and North Carolina have taken some actions to reduce industrial sources of PFOS and some other PFAS, but not nearly as much as they should, Gisler said.

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