EPA Proposes Maximum PFAS Levels for Drinking Water

On Tuesday, March 14, the United States Environmental Protection Agency (EPA) proposed a new set of standards for six types of PFAS (per- and polyfluoroalkyl substances) in drinking water – and explicitly indicated that no amount of two of these chemicals (PFOA and PFOS) is safe. The agency is requesting comment on the new regulation and anticipates finalising the standards by the end of 2023. The move would have a dramatic effect on the thousands of communities in the United States where PFAS chemicals have been found in drinking water, as well as tens of thousands more contaminated sites, known and unknown.

The new standards, or Maximum Contaminant Levels (MCLs), are federally enforceable levels that represent the highest level of the contaminants that can be allowed in drinking water – different from the lifetime health advisory levels issued last June, which were advisory-only (and were set orders of magnitude lower than these MCLs). PFAS have been linked to a variety of health effects, including cancer, immune system, liver, and kidney damage, as well as reproductive issues. MCLs are somewhat unique in that they incorporate not just health effects, but also take into consideration the costs and feasibility associated with water treatment – and as PFAS cannot be removed by many traditional treatment methods, substantial upgrades will be required even at the levels proposed. The Bipartisan Infrastructure Law has been touted by the EPA as providing $9B of funding for communities to address this issue.

EPA has proposed MCLs of 4 parts per trillion (ppt) for two of the oldest PFAS chemicals, PFOA and PFOS. Four other PFAS compounds (PFNA, PFHxS, PFBS, and Gen-X) were assigned a cumulative risk level, in which any combination of those four chemicals cannot exceed a certain relative toxicity threshold dependant on how much of each chemical is present (EPA will provide an online calculator tool to use in evaluating this level).

The action is the latest move made by the agency in line with the PFAS Strategic Roadmap announced in 2021, outlining EPA’s approach to addressing the unique challenges that are faced when addressing these “forever chemicals” in the environment and their ongoing use in industrial and commercial applications. Other elements have focused on source control efforts through reporting regulations placed on the industries that use these chemicals, and a plan to name select PFAS as “hazardous substance” under CERCLA, the Superfund cleanup law.

SLR has experience advising clients on the occurrence, toxicity, and potential environmental liability posed by PFAS releases in the U.S., Canada, Europe, and Australia. Our team of experts have performed site characterisations for AFFF training facilities and other potential points of release; evaluated the toxicity of specific chemical species present to develop screening and remediation levels; and planned and performed remediation of PFAS-contaminated media. Working closely with both in-house and environmental counsel SLR has assisted clients to recover costs for remediation and to control long-term liability for confirmed releases. Additionally, SLR has advised clients and counsel on the implication of potential PFAS releases during due diligence for commercial properties.

View the EPA press release here: Per- and Polyfluoroalkyl Substances (PFAS) Proposed PFAS National Primary Drinking Water Regulation