Utilities Brace for Costs of Compliance With New PFAS Water Rule

Water utilities will face costly challenges meeting the EPA’s new limits on PFAS in drinking water, making litigation nearly inevitable, lawyers and analysts say.

The standards will effectively require drinking water systems to remove any PFAS they detect in their drinking water, and affect many more water systems than the Environmental Protection Agency expects, sparking “a number of legal challenges,” said David Edelstein, partner at Archer & Greiner PC.

When the EPA on Wednesday finalized the first-ever limits on per- and polyfluoroalkyl substances (PFAS) in drinking water, it set safe amounts of the “forever chemicals” to nearly zero.

The limits include an enforceable 4 parts per trillion (ppt) limit on perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) in drinking water. The agency set a non-enforceable maximum contaminant level goal for PFOA and PFOS at zero, reflecting research showing that no level of exposure is risk-free from cancer and other diseases.

The rule also sets a limit of 10 ppt on three other categories of PFAS in drinking water, including perfluorononanoic acid (PFNA), perfluorohexane sulfonate (PFHxS), and “GenX” chemicals. GenX chemicals are made by the Chemours Co., which owns the trademark, to produce fluoropolymers used in semiconductor chips.

The rule also set a limit on mixtures of each of those substances, in addition to perfluorobutanesulfonic acid (PFBS).

Up to 6,700 water systems serving about 100 million people, or between 6% and 10% of all the drinking water systems in the US, will be affected by the new standards, according to the EPA.

“I think the frequency of detections at these levels are going to be more than EPA is contemplating,” Edelstein said. “It’s going to be everywhere.”

It could cost water utilities nationwide up to $40 billion in capital investments and $3.8 billion annually to comply with the standards, said Chris Moody, regulatory technical manager for the American Water Works Association.

The EPA estimated that it could cost $1.5 billion for utilities to comply with the rule, with benefits also totaling $1.5 billion. About $1 billion in infrastructure funding will be available to help water systems test for PFAS and remove it. An additional $12 billion is available for general drinking water system improvements.

Ratepayers could be on the hook for hundreds or thousands of dollars in additional drinking water costs as water systems pay for PFAS testing and the technology to remove the chemicals if they are detected, Tom Dobbins, CEO of the Association of Metropolitan Water Agencies, said in a statement.

“This rulemaking represents a multi-billion-dollar unfunded mandate that will be borne by water system ratepayers across the country,” Dobbins said, adding that federal infrastructure dollars available to support PFAS testing and removal are insufficient.

The EPA’s cost-benefit justification for the standards will be targets of litigation, said Anna J. Wildeman, counsel at Troutman Pepper Hamilton Sanders LLP in Washington and a former Trump administration official in EPA’s Office of Water.

“The significant cost of the rule coupled with the debatable benefits may be compelling on judicial review,” she said.

The EPA’s enforceable maximum contaminant level (MCL) for mixtures is also likely to be challenged in court because the agency didn’t find enough evidence to establish an MCL for PFBS individually, Wildeman said.

Worth the Cost

Supporters of the new standards recognize the compliance costs but say they’re worth it.

“I think EPA’s conclusion that the benefits of the rule justify the cost is very well supported by the record,” said Katherine O’Brien, senior attorney at Earthjustice, an environmental law firm. “EPA is making a very substantial investment to support water systems who are going to need to pursue technological solutions to clean up drinking water.”

The new standards provide “a ton of relief” to communities that have suffered from PFAS pollution in drinking water for years, said Jean Zhuang, senior attorney for the Southern Environmental Law Center.

“The regulated community has pushed back heavily against any control of PFAS pollution in this country,” Zhuang said. “We hope there won’t be litigation, but expect it.”

Reduced cancer risk and other public health benefits that come with less PFAS exposure make the new standards one of the Biden administration’s most significant environmental regulations, Radhika Fox, former EPA assistant administrator overseeing the Office of Water, said in an interview Wednesday.

But it’s expensive to ensure drinking water is PFAS-free, she said.

“These drinking water facilities aren’t responsible for the contaminants that are there,” she said, adding that funding from the infrastructure law is an important “down payment” that will help water systems comply with the new standards.

Water systems worried about compliance costs should contact EPA right away for technical assistance, and reach out to administrators of the state revolving funds, which distribute federal assistance for drinking water system upgrades at the state level, Fox said.

But ultimately, states and the federal government are going to have to “continue to identify additional resources” to help water systems remove PFAS, she said.

Essential Substances

PFAS are known as “forever chemicals” because they remain in the environment indefinitely, are considered carcinogenic, and include coatings such as Teflon used in cookware.

The substances can be found in about 45% of US drinking water sources, including public water systems and private water wells, US Geological Survey scientists estimated in 2023.

Chemours, one of the largest PFAS producers, defended the use of the substances and said it is reviewing the standards.

The company has “serious concerns” about the science EPA used to justify the standards and has taken steps to address legacy constituents, spokeswoman Cassie Olszewski said in an email.

“Fluorine chemistries are essential and can be made responsibly,” she said.