Forever Chemicals in the Biden Administration: Inevitable PFAS Regulation and Water Utilities

Growing Trend of PFAS litigation

Last month the Pennsylvania-American Water Company (PAWC) sued manufacturers of Per and Polyfluorinated Alkyl Compounds, commonly known as PFAS. The lawsuit alleges the manufacturers either knowingly or negligently allowed contamination into public drinking water supplies. PAWC joins an increasing trend of water utility companies suing over PFAS contamination in public drinking water supplies. In 2020, water districts in California filed lawsuits alleging similar claims against PFAS manufacturers. In addition, the National Rural Water Association (NRWA) filed a class action on behalf of its members against PFAS manufacturers.

The increasing trend of water utilities instigating PFAS litigation is a result of the public health issues related to PFAS exposure and the expensive processes required to remove PFAS from drinking water supplies. PFAS exposure is linked to a host of adverse health issues and current water treatment technologies are ineffective at removing these toxic chemicals from public drinking water supplies. PFAS are of a growing national concern with several major metropolitan areas, including Phoenix and Tucson, reporting measurable concentrations PFAS compounds. Water utilities are investing millions of dollars into improved water treatment infrastructure to better cope with the growing and persistent PFAS contamination problem.

Scientific background and ubiquity on the marketplace

PFAS are a class of synthetic chemical compounds that have widespread industrial use for their ability to waterproof, greaseproof, and create non-stick surfaces.

Characteristics of these chemical compounds are an alkyl chain, which is a chain of carbon atoms connected via a single covalent bond with at least one carbon atom that is fully fluorinated. An alkyl chain is covalently bonded with fluorine atoms rather than Hydrogen atoms (as is typical in less complex hydrocarbon compounds).  Understanding the basic chemical structure of the PFAS class helps illustrate the myriad of compounds that make up the class.  It is not hard to imagine a multitude of compounds of various lengths of alkyl chains or degrees of fluorination.  In addition, numerous other functional groups can be present in the compounds, further increasing the available combination of PFAS chemical compounds.  Such variability in a single class of chemical compounds, tied together by their common characteristics, allows for application in an equally broad class of industrial and consumer products. 

PFAS compounds’ unique qualities resulted in the compounds becoming a mainstay component in many well-known consumer products. One of the most common uses of PFAS in consumer products is in the form of non-stick cookware.  As an example, Teflon, Dupont’s trademark name for Polytetrafluoroethylene (PTFE), is a PFAS compound used for creating non-stick kitchen cookware. Another example of a well-known consumer product containing PFAS is Scotchgard, providing stain resistance to furniture. In addition, PFAS are components in a variety of other consumer products including food packaging, stain or waterproof fabrics, and a variety of waxes, polishes, and paints.  These consumer products eventually reach landfill sites creating a concentrated area of environmental pollutants, which can lead to further water pollution.

Past Regulatory efforts

The EPA started examining PFAS in public drinking water supplies in 2012 under the Unregulated Contaminant Monitoring Rule (UCMR) to determine if an MCL should be issued.  However, the EPA to date has not yet promulgated a Safe Drinking Water Act (SDWA) regulation for PFAS.  It, instead, issued a non-binding health advisory for PFOS and PFOA, two common and toxic PFAS compounds, with a recommended MCL of seventy parts per trillion.  The EPA has not addressed other PFAS chemicals with either a formal regulation or non-binding health advisory.

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the EPA currently designates PFOS and PFOA as contaminants but not hazardous substances. For a substance to be “hazardous,” the EPA must determine that the contaminates poses “imminent and substantial danger” to public health. The distinction between “contaminate” and “hazardous substance” for PFOS and PFOA limits the agency’s authority to impose notice requirements or designate superfund sites and impose remediation costs. The PFAS action plan indicates that the EPA is considering designating PFOS and PFOA as hazardous substances. Despite the health threat posed by PFAS and clear statutory authority to regulate PFAS pollution, the EPA has not acted in regulating the chemical compounds under any environmental statute, including the SDWA and CERCLA. 

In 2019, the EPA created its comprehensive PFAS action which in part addressed both drinking water standards and CERCLA designation.  The action plan sets out short and long term goals, with a focus on setting an enforceable drinking water standard and strengthening cleanup efforts by potentially listing PFAS as hazardous substances under CERCLA.  As a part of implementing the PFAS action plan, the EPA published its preliminary determination to regulate PFOS and PFOA in drinking water systems in early 2020.

In response to the slow-moving regulatory process, Congress created a bipartisan committee with the goal of putting pressure on the EPA to accelerate the process for addressing PFAS regulation. In early 2020, the House passed the PFAS Action Act which would, in part, require the Administrator of the EPA to create drinking water standards and list PFOS and PFOA as hazardous substances under CERCLA.  The Senate passed a competing piece of legislation, the PFAS Release Disclosure and Protection Act of 2019, with less stringent measures addressing PFAS contamination.  Moreover, there have been a host of other pieces of legislation that address PFAS contamination in both Houses of Congress that have not yet passed. However, because of the potentially slow response at the federal level, – both at the regulatory and the legislative level – some states have moved forward with creating their own enforceable drinking water standards.

Regulation under the Biden Administration

President Biden made it a campaign mission to invest more on “green” policies and reverse President Trump’s administration’s effort to roll back environmental regulations. President Biden’s comprehensive environmental policy included promises to address PFAS contamination issues, and early signs from his administration point to acceleration on PFAS regulation. Biden’s nominee to head the EPA  has also promised aggressively ramping up regulation on PFAS chemicals.

Already, the Biden administration has revoked the previous administration’s finding and determination one PFAS chemical compound for “political interference.” Furthermore, the Biden EPA reissued a determination to regulate PFOA and PFOS under the SDWA. All signs point to increased attention and accelerated action on PFAS, both under the SDWA and CERCLA.

Conclusion

Water utilities are facing enormous costs because of PFAS contamination.  In order to comply with the imminent federal standards along with recent state standards, water utilities will have to invest significantly in improving water treatment infrastructure above the millions of dollars already being spent in compliance with the federal and state environmental laws.  One research group projects improving water treatment facilities [for PFAS alone] is going to cost water utilities over twelve billion dollars over the next ten years to meet current and future regulatory standards.

The federal government should afford more protection to water utilities because they were not responsible for the contamination problem. Congress exempting utilities from some of the costs associated with potential PFAS clean up under CERCLA would both relieve the burden on utilities while also still holding the truly responsible parties (the manufacturers) for environmental remediation; it is also the position advocated by much of the regulated community.