EPA targets ‘forever chemicals’ in historic water rule

By E.A. Crunden | 03/14/2023 01:37 PM EDT

The proposal ratchets down the acceptable levels of the chemicals in drinking water, going beyond the expected scope and ending EPA’s decadeslong era without regulating a new contaminant in drinking water on its own initiative.

hand holding a glass of water under a running tap

EPA plans to regulate six compounds of “forever chemicals” under the Safe Drinking Water Act. Andres Siimon/Unsplash.com

EPA is taking aim at six notorious “forever chemicals” with aggressive standards likely to usher in a new hard-line approach to the compounds.

Administrator Michael Regan unveiled dramatic new drinking water cutoffs for two PFAS on Tuesday, with a proposed rule slashing the threshold permitted in systems nationwide. Under the proposed regulation, the limit for the likely carcinogen PFOA and equally notorious PFOS would be 4 parts per trillion — as low as labs can reliably measure.

Four additional compounds would be regulated as a mixture and assessed through a hazard index calculator, a tool commonly used in public health and environmental settings. That formula would determine if combined levels of PFNA, PFHxS, PFBS and HFPO-DA (better known by its trademarked name GenX) require immediate action.


“If finalized, this is going to be transformational for the American public,” EPA’s top water official, Radhika Fox, said in an interview with E&E News. She called protecting drinking water “essential” for safeguarding public health and said that the agency estimates the proposed rule, if finalized, would save thousands of lives and prevent tens of thousands of serious illnesses.

The action ushers in a major new chapter for environmental oversight. EPA has long been criticized for its hesitancy in using its authorities under the Safe Drinking Water Act to target contaminants. By some measures, the agency has not actively moved to regulate a drinking water contaminant in over 25 years.

But Regan, in Wilmington, N.C., on Tuesday, spoke passionately about the issue.

“What began as a so-called miracle, groundbreaking technology meant for practicality and convenience, quickly devolved into one of the most pressing environmental concerns in the modern world,” said Regan, who rose to prominence as North Carolina’s top environmental official through actions including a major consent decree over GenX pollution.

He pledged that the agency will not stop “until every single person is provided the same fundamental rights and protections” through their drinking water.

The move marks a major step forward in the Biden administration’s efforts to rein in the controversial family of more than 10,000 chemicals, which have come to contaminate much of the globe. Found in everything from dental floss and cookware to firefighting foam and solar panels, the chemicals have been prized for their moisture-resistant properties — even as data has increasingly linked them to a slew of health impacts like kidney and liver disease, reproductive problems, and, in some cases, cancer.

Environmental advocates and impacted communities have repeatedly called on EPA to take aim at PFAS as a class, targeting them all in one fell swoop. Industry members have aggressively countered those appeals, noting that little is known about the health impacts of many of the compounds, which vary wildly in structure, and that the costs of addressing the problem are staggering.

To that end, economic fallout is likely to take center stage as the agency seeks public comment on the proposal. Fox said costs are estimated to be about $772 million annually, a number associated with areas like installing treatment technologies and communicating with the people served by local water utilities.

She emphasized that the economic benefits of the regulation are seen as far greater by EPA, with an estimated $1.2 billion per year in human health benefits — or over $100 billion in the lifetime of a child born today. Fox called those benefits “really wide ranging” and pointed to “fewer cancers, reduced incidents of heart attacks and strokes, [and] reduced birth complications,” all of which have been associated with PFAS exposure.

Some of those savings might go the furthest in the vulnerable communities hit hardest by water contamination nationwide. Fox said environmental justice concerns have played a major role in the Biden administration’s water policies more broadly.

“It’s not only about the regulation for us. … There are too many disadvantaged communities that have been shut out” and harmed by polluted water, she said.

‘The most protective approach’

Details within the proposal underscore the fight EPA has waged, including with other agencies. For months the effort sat with the Office of Management and Budget as regulators stared down questions over economic factors and feasibility.

The final details show an action more aggressive than what many anticipated, even as recently as last summer. For one thing, EPA initially said it would seek to regulate specifically PFOA and PFOS. Betsy Southerland, a former career official with the Office of Water, called the inclusion of other chemicals “innovative” and said it offered regulators a path around the process of debuting a maximum contaminant level, or MCL, for those compounds.

“By using a hazard index approach, they do not need to set an MCL for all four chemicals and instead can use [a mixture approach] to regulate on a case-by-case basis,” Southerland said.

Health advisories currently exist for PFBS and GenX, but not for PFNA and PFHxS. EPA did not comment on whether new advisories might be issued for those chemicals.

Officials said that if the rule is finalized, EPA will debut a calculator on the agency’s website to assist with assessing mixtures containing any of those four additional chemicals. Fox noted that PFAS tend to co-occur in water and that those specific compounds have appeared together often. Combined levels run through the hazard index would be assessed cumulatively and would help make a determination around threat risk.

Using a health-based water concentration input and samples from water utilities, the hazard index would make a determination. If the total value exceeds 1, it would in turn exceed the maximum level for contamination established by EPA.

By contrast, individual levels of PFOA and PFOS would trigger immediate action. But those thresholds are notably higher than they might have been. This past summer, EPA announced that it would slash its health advisories for PFOA and PFOS, which previously stood at 70 parts per trillion in drinking water. Pointing to emerging science and research, the agency said that the actual safe consumption levels were 4 parts per quadrillion for PFOA and 20 ppq for PFOS (Greenwire, June 15, 2022).

Regulators were realistic at that time about the likelihood that any proposed rule would debut higher levels in drinking water. While nonbinding advisories rely solely on health concerns, rules promulgated by the agency must account for factors including technological and economic limitations.

Southerland said that the agency took “the most protective approach” it could in cracking down on those two compounds. “They could not regulate below detection limits for PFOA and PFOS because the regulation has to be based on the current EPA approved analytical method,” she said.

Mixed reaction

Many advocates are celebrating the news after years of waiting. Emily Donovan, a longtime community advocate with the group Clean Cape Fear, spoke alongside Regan on Tuesday.

“We have been fighting for years to get access to PFAS drinking water standards,” Donovan said, adding, “Today, that is starting to change.”

Multiple major organizations shared similar sentiments. Erik Olson, a senior health expert with the Natural Resources Defense Council, called the proposal “groundbreaking,” while Earthjustice attorney Jonathan Kalmuss-Katz said that it was “necessary” and “long overdue.”

Still, Kalmuss-Katz emphasized that advocates want to see the remaining PFAS also subject to scrutiny and regulation. And some advocates are already dismayed by elements of the proposal. Kyla Bennett, a scientist and attorney formerly with EPA and now at Public Employees for Environmental Responsibility, argued that levels for PFOA and PFOS should have been lower.

“EPA said there was basically no safe level of PFOA and PFOS in drinking water,” she said, calling the final MCLs “hard to swallow.”

Bennett also worried that the hazard index calculations for the other four compounds only account for non-cancer effects. Cancer is challenging to connect to a chemical and requires significant data, much of which does not exist for most PFAS. But Bennett asserted that EPA should be more protective given what it does know about the link between compounds like PFOA and cancer.

“The absence of evidence does not mean the evidence of absence,” she said. “We don’t know, so we pretend it doesn’t exist?”

Among those least happy with the announcement are industry members across various sectors. Chemical interests have been protective of their products and vehemently slammed the move Tuesday afternoon. The American Chemistry Council said it supports restrictions on the use of PFOA and PFOS, which were phased out of U.S. production years ago. But the powerful trade organization said there were “serious concerns” around the science EPA used to justify its proposal.

Other sectors are more concerned with how the fallout will hit them despite only serving as passive receivers of PFAS-laden material. EPA said water utilities will be able to access funds made available through the bipartisan infrastructure law and other avenues, pledging that the government would be offering assistance to help those systems shoulder the cost. But many are skeptical and remain highly concerned about how to respond. They are also wary of EPA’s cost estimation, which they believe is wildly out of touch with the actual financial realities of funding such an endeavor.

Association of Metropolitan Water Agencies CEO Tom Dobbins said in a statement that the group plans to provide EPA with extensive comments on the proposal. “AMWA is concerned about the overall cost drinking water utilities will incur to comply with this proposed rulemaking,” Dobbins said, noting that despite EPA’s cost estimate, the Cape Fear Public Utility Authority’s estimated capital cost for its treatment alone was $43 million — far exceeding its annual operating cost of $3 million to $5 million.

“Ultimately, without more federal support for upgrading current treatment technologies, average Americans will have to pay the cost of further treatment through higher rates for their water,” Dobbins said.

Mike McGill, a Wilmington-based water communications expert, meanwhile said he was “dumfounded” by the announcement and worried that it risked public confidence in drinking water without addressing the root cause of the problem.

Funding the response for public water systems, he said, will require “billions from the polluters to pay for the damage they’ve done.”

Fights to come

Litigation from various industries is likely, although the exact shape it could take remains to be seen.

ACC and Chemours Co. both sued last summer in the wake of EPA’s nonbinding health advisories, arguing that the agency took a “scientifically unsound” approach to issuing that guidance. Those efforts have met with some setbacks — a judge threw out ACC’s lawsuit in January — but they foreshadow fights to come.

Some chemical companies are also eyeing an off-ramp. Industry giant 3M Co. said in December that it will phase down its PFAS manufacturing by 2025, in a dramatic move that could gain traction across the industry.

EPA is meanwhile moving forward. Fox did not comment on whether other PFAS might be slated for regulation as drinking water contaminants in the future and said the agency is focused on gathering science and data as it moves forward.

But more compounds that could fall under scrutiny include the PFAS already being monitored under the agency’s Unregulated Contaminant Monitoring Rule, currently in its fifth iteration (E&E News PM, Dec. 20, 2021). That rule will give regulators a significant amount of data as they assess the risks various PFAS pose in drinking water systems nationwide.

“The bottom line is that the science is clear: Long-term exposure to PFAS is linked to significant health risks,” Fox said. “And drinking water represents a significant portion of their exposure.”

Targeting PFAS in drinking water, she said, is “one of the best ways we can protect people from these very dangerous chemicals.”