The US Environmental Protection Agency (EPA) has issued its first-ever national, legally enforceable drinking water standards for per- and polyfluoroalkyl substances (PFAS); chemicals notorious for their persistence in the environment.Bloomberg Law reports that these stringent regulations significantly impact businesses, particularly those in states where more relaxed PFAS standards previously applied.
The EPA has established maximum contaminant levels (MCLs) for six PFAS substances at near-zero quantities, and it is anticipated that the financial burden to uphold these MCLs through water treatment could reach into the billions. To mitigate this expense, water systems are expected to seek legal remedies against companies liable for PFAS in the supply. Unfortunately, as standard insurance is typically insufficient for such environmental risks, businesses will likely shoulder the costs for defense and any ensuing judgment.
The PFAS regulated by the EPA include PFOA, PFOS, PFNA, PFHxS, HFPO-DA, and PFBS. These are restricted to stipulated MCLs in public water supply systems and also apply to PFAS mixtures containing two or more of these substances.
The EPA has also issued non-enforceable maximum contaminant level goals (MCLGs) for PFAS, intended to serve as a health line in the sand for drinking water contamination. MCLGs represent a contaminant concentration at which no known or expected health risks arise, thus offering a margin of safety.
Businesses operating in Massachusetts, Michigan, New Jersey, Pennsylvania, New York, and other states that previously enforced their own PFAS standards must now adhere to federal MCLs or MCLGs.
Lastly, the new MCLs will affect site cleanups and environmental due diligence under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Since the federal MCLs will become ARARs at Superfund sites across the US, it could lead to increased cleanup costs, delays, and expansion of existing Superfund sites to incorporate PFAS and new responsible parties. The CERCLA requires Superfund remedies to achieve MCLGs in the remediation of groundwater and other drinking water sources. Parties potentially responsible for these increased environmental risks should begin preparations now.