WASHINGTON – The Environmental Protection Agency is moving closer to issuing new regulations on polyfluoroalkyl substances, or PFAS.
On February 22, the EPA issued Final Regulatory Determinations for PFAS, a final step before it can begin implementing national drinking water regulations for PFAS. It also reissued a rule requiring certain water systems to collect samples for 30 substances over a 12-month period. Of those 30, 29 are PFAS.
U.S. Senator Shelley Moore Capito (R-W.Va.) applauded the EPA’s announcement regarding the proposal of the Safe Drinking Water Act and the new standards for PFAS.
Wheeler
“Setting drinking water standards for PFOA and PFOS has been a legislative priority of mine for years, including in leading bipartisan legislation to require them,” Capito said. “I applaud the EPA and Administrator (Andrew) Wheeler for starting the process to finally regulate these legacy ‘forever’ chemicals and provide Americans the certainty that the water they drink, cook and wash with, and bathe in is free of these harmful compounds.”
The EPA moves come less than a week after Capito sent a letter to White House Chief of Staff Ron Klain about PFAS.
“On January 20, 2021, you issued a memorandum titled ‘Regulatory Freeze Pending Review,’ which directs that any new or pending rules be immediately frozen from publication in the Federal Register until the Biden administration reviews and approves of them,” Capito, ranking member of the Committee on Environment and Public Works, wrote in the February 17 letter. “Caught — I hope unintentionally — in this review process are significant actions to address PFAS.
“I have long taken a lead role in bipartisan efforts to address PFAS, and of significant importance to me is the timely action of EPA to promulgate a National Primary Drinking Water Regulation.”
PFAS were used in many household products such as stain-and water-repellent fabrics, Teflon, polishes, waxes and paints and in fire-fighting foams.
If PFAS are classified as hazardous, companies that produced them will face litigation in addition to the federal multidistrict proceeding in South Carolina. Governments and private landowners could also face new challenges.
Capito has pushed the EPA to set these PFAS standards and has introduced several pieces of legislation on the matter.
“West Virginia is all too familiar with the challenges of PFAS contamination, and now communities around the country are realizing they also have challenges from PFAS pollution,” Capito said. “Setting maximum contaminant levels for these two compounds is an essential step in addressing this human health and environmental issue and I look forward to continuing to work with the EPA to ensure standards are robust, scientifically-driven, and issued in a timely fashion.”
In March 2019, Capito told the EPA it was “falling short” in its actions toward regulating PFAS. In May 2019, she introduced the Protect Drinking Water from PFAS Act of 2019, which would require the EPA to establish an enforceable standard under the Safe Drinking Water Act for PFAS in drinking water. That same month, she also introduced the PFAS Release Disclosure Act, which would improve the availability of information related to PFAS.
The National Law Review says PFAS drinking water regulations could be in place by the end of this year.
“Without question, businesses of all types must prepare now and assess the multitude of ways that their practices (whether intentional / knowing or not) are contributing to PFAS pollution in drinking water sources,” The National Law Review said in a February 23 piece. “Failing to do so could lead to significant fines, cleanup costs, and business interruption headaches.”
The impact on businesses will be widespread, according to the NLR.
“Many companies assume that any regulation under the Safe Drinking Water Act will not impact them, as virtually no industries, aside from water utilities, have any direct impact on drinking water,” the story said. “However, this belief provides a false sense of security that must immediately be dispelled.
“There are three specific ways that drinking water limits for PFAS will trigger scrutiny on environmental practices of businesses: (1) effluent discharges into water sources; (2) waste sent to landfills that may leach into drinking water sources; and (3) properties abutting or in the vicinity of water sources.”
It called direct discharges into water sources “the low-hanging fruit target for local environmental agencies at the state level.”
“Companies must ensure that they have all permitting in order, and it is advisable that the permitting specifically encompasses PFAS,” the NLR story states. “Failing to do so will cause issues down the line when local environmental regulatory bodies look to determine, even retroactively, who PFAS water polluters are or were, as those agencies seek to hold businesses responsible for the costs associated with cleaning up PFAS in drinking water.”
It said businesses that have nothing to do with PFAS will have to pay attention as well.
“For example, has the property on which your business sits ever had fires that have required a local fire department to extinguish flames using foam (historically, a PFAS containing product)?” the NLR story asks. “What did the owner of the site prior to you use the site for? Were there possible PFAS contamination issues stemming from that prior business? Did your due diligence reports and tests when purchasing the property take PFAS into consideration?
“If PFAS were a contaminant on the land on which your business now operates, local environmental agencies will pursue cleanup costs from any such business regardless of knowledge or intent, and regardless of whether the PFAS issues were the result of a prior company on the site. These investigations and remediations can be extremely expensive and disruptive to businesses. …
“Both the federal and the state level regulations will impact businesses and industries of many kinds, even if their contribution to drinking water contamination issues may seem on the surface to be de minimus. In states that already have PFAS drinking water standards enacted, businesses and property owners have already seen local environmental agencies scrutinize possible sources of PFAS pollution much more closely than ever before, which has resulted in unexpected costs.”
