In what should come as a surprise to no one, on April 10, 2024, U.S EPA finalized its National Primary Drinking Water Regulation for six per- and polyfluoroalkyl substances (“PFAS”).  These final standards are summarized below:

Public water systems (“PWS”) will have three years to complete initial monitoring for these six specific PFAS to be followed by ongoing compliance monitoring.  If found in the drinking water above these standards, the PWS will have five years (2029) to implement solutions to reduce the PFAS to below these regulatory levels and provide notification to the public of the alleged violations.  

But what do these new PFAS drinking water standards really mean for the regulated community?  We already know that as a result of data being collected in connection with U.S. EPA’s Fifth Unregulated Contaminant Monitoring Rule that PFOA and PFOS have been found in more than ten percent of the PWS that were required to sample and it is expected that PFAS will be found in additional PWS once the sampling requirement is expanded to all PWS.  To the extent that any of these six PFAS are identified by PWS above the recently promulgated regulatory levels, impacted PWS are likely to cast a wide net looking for other potential contributors with nearby manufacturing facilities.   And U.S. EPA’s ongoing efforts to implement its PFAS Strategic Roadmap will continue to generate data that can be relied on by PWS in searching for additional “responsible parties”. 

For example, in November 2023, U.S. EPA finalized a rule eliminating the de minimis exemption for reporting for 189 PFAS in Toxic Release Inventory (“TRI”) reports.   U.S. EPA estimated that by eliminating the de minimis reporting exemption, an additional 2,000 companies would be required to file TRI reports on PFAS releases into the environment.  Similarly,  U.S. EPA’s recently promulgated PFAS Reporting Rule under the Toxic Substances Control Act requires companies to provide data on PFAS in consumer and industrial products going back to 2011.  The rule requires that any entity that manufactured or imported PFAS, PFAS-containing articles, PFAS in mixtures, byproducts or as an impurity, provide specific information regarding PFAS uses, production volumes, disposal, exposures, hazards and environmental and health effects.  There is no reporting threshold under this rule. 

Notwithstanding that major PFAS manufacturers have settled with PWSs, since there will soon be additional information flooding the public arena regarding historical and ongoing uses of PFAS, PWS are still likely to seek to mine that data to find other contributors to fund remediation of PFAS-impacted drinking water.  In order to both mitigate risk and ensure compliance with applicable reporting requirements, companies would be well served to carefully audit their supply chain to identify potential PFAS uses.  Of course, that can pose a challenge where the PFAS might not be disclosed on safety data sheets or where there is uncertainty regarding what actually constitutes a PFAS.   

We will continue to monitor and report on new PFAS developments at the Corporate Environmental Lawyer Blog.