Four months after the U.S. Environmental Protection Agency (EPA) proposed federal drinking water limits on “forever chemicals,” Harris Beach continues to monitor for a final resolution to the proposed regulations.

A recent U.S. Geological Survey (USGS) study found per-and polyfluoroalkyl substances, known collectively as PFAS, in drinking water throughout the United States. PFAS are a group of synthetic chemicals found in a variety of products, including the linings of fast-food boxes, non-stick cookware, water-repellant clothing and fire-fighting foams.

The USGS study tested for 32 individual PFAS compounds using a method developed by the USGS National Water Quality Laboratory. At least 45% of the nation’s tap water is estimated to have one or more types of the chemicals.

The Environmental Protection Agency’s proposed rule presents challenges, both technical and in terms of the public’s understanding of what PFAS in drinking water may mean. As proposed, the rule will impose heavy compliance burdens on small business. Despite EPA’s certification that the rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act, a Small Business Advocacy Review (SBAR) panel convened after the rule’s announcement, and EPA revised its estimate of the proposed rule’s total financial burden of compliance 81-fold.

Unlike the health advisory levels EPA made public a year ago, the proposed rule establishes legally enforceable levels for six PFAS substances known to occur in drinking water. EPA is proposing a Maximum Contaminant Level (MCL) of 4 parts per trillion (4 ppt), the lowest practicable level based on the ability to reliably measure and remove these contaminants from drinking water.

Until the rule is adopted, the EPA has advised communities and water purveyors to follow applicable state requirements. If adopted, states would be required to have a standard that is no less strict than federal limits.

If adopted, the proposed rule will require all community water systems and non-transient, non-community water systems to conduct initial monitoring, at the entry point of the distribution center, within three years of the rule’s promulgation. Based on their size and source water, systems must conduct initial monitoring either twice or quarterly during a 12-month period and provide public notification on an MCL violation as soon as practicable, but no later than 30 days after learning of the violation.

Harris Beach’s PFAS attorneys are monitoring regulation and significant industry developments at the federal and state level. Further, Harris Beach continues to expand its capability, through litigation representation and regulatory counseling, to assist entities concerned with compliance and legal exposure. If you have any questions about the matters in this Legal Alert or related matters, please contact attorney Gene J. Kelly at 518-701-2740 and gkelly@harrisbeach.com, attorney Kelly Jones Howell
at 212-912-3652 and khowell@harrisbeach.com, or the Harris Beach attorney with whom you usually work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.

To read more on PFAS and environmental regulation:

• Court Rules Company Not Responsible for Medical Monitoring Costs in PFAS Case
• New York’s PFAS Food Packaging Law and Four Risk Mitigation Steps for Businesses
• New York Bans PFAS in Apparel
• EPA Releases Crucial PFAS Drinking Water Rule; Implications for Water Treatment Facilities
• Federal Government Expands Scope of Regulated Wetlands
• Airlines Trade Association Requests EPA Withdrawal of Proposal to Designate PFOA/PFOS as CERCLA Hazardous Substances
• EPA’s Latest PFAS Guidance Signals Source-based Permitting and Monitoring Strategy