April 11 (Reuters) - The U.S. Environmental Protection
Agency has finalized the first federal regulations on toxic
"forever chemicals" in drinking water, setting tight limits that
essentially require public water systems to all but eliminate
their presence in American tap water.
The highly anticipated rules target six per- and
polyfluoroalkyl substances, or PFAS, that are commonly used to
make thousands of commercial and consumer products like
semiconductors, firefighting foams and stain resistant fabrics.
PFAS are known as forever chemicals because they do not
easily break down in the environment or in the human body, and
they have been linked to cancers and other health concerns.
Here is what you need to know.
WHAT DOES THE RULE DO?
The EPA's rule issued on Wednesday under the Safe Drinking
Water Act sets strict limits ranging from 4 to 10 parts per
trillion for five individual kinds of PFAS, and includes limits
for several other PFAS if they are present in combination in
water.
All public water systems have three years to complete their
monitoring for these chemicals and must inform the public of the
level of PFAS measured in their drinking water.
In cases where PFAS is found at levels that exceed the
standards, the water systems are required to implement measures
to reduce PFAS in their drinking water within five years.
HOW DOES THIS RULE FIT IN WITH OTHER PFAS REGULATIONS?
The rule is the most aggressive regulation yet under the
EPA's so-called "PFAS roadmap."
The agency previously bolstered requirements that
manufacturing facilities report their use and disposal of PFAS,
and issued a rule preventing companies from using PFAS in new
manufacturing processes without EPA approval, among other
things.
Going forward, the agency is expected to finalize rules
designating at least two PFAS as hazardous substances under the
U.S. Superfund law, which could expose many industries to
potential cleanup liability.
ARE LEGAL CHALLENGES TO THE RULE LIKELY?
Legal experts say court challenges seeking to block the rule
are likely to be filed by manufacturers, business groups and
potentially water systems themselves.
The challengers are likely to argue that the EPA's rules
were crafted without adequately considering the cost of
compliance or without adequate evidence showing the need for the
rules, in violation of requirements under the Safe Drinking
Water Act and federal administrative law.
The National Association of Manufacturers, the American
Chemistry Council and the U.S. Chamber of Commerce said in
comments last year to a draft version of the rule that it
overstated the benefits of imposing the limits while
underestimating costs. Water utility industry groups said in
comments that compliance could cost water systems billions of
dollars.
Texas, which has frequently challenged Biden administration
rules in court, has called elements of the rule "oversimplistic"
and said it would be difficult for small water systems to comply
given the costs.
HOW WILL THE RULE BE ENFORCED?
Under the Safe Drinking Water Act, most states are given
primary enforcement authority to ensure drinking water standards
are met. The EPA typically gets involved when states are not
enforcing the requirements or are otherwise unsuccessful in
enforcement efforts.
State and federal regulators can issue administrative orders
that lay out steps for water systems to come into compliance,
file legal actions or fine water systems that are not meeting
the standards. Experts say any future fines are likely years
away, and would come after numerous warnings.
Citizens can also sue the government or water systems under
the law to force compliance.
COULD THE STANDARDS BOLSTER EXISTING LAWSUITS?
Lawsuits brought by hundreds of water systems against
chemical manufacturers accusing them of negligence and of
creating a nuisance by contaminating water with PFAS have
already yielded major settlements.
Last year, 3M ( MMM ) reached a settlement worth $10.3
billion with water systems across the U.S. that will help pay to
clean up drinking water contaminated with PFAS, while DuPont de
Nemours Inc ( DD ), Chemours ( CC ) and Corteva ( CTVA ) reached
a similar deal worth $1.19 billion.
The settlements were a part of sprawling multidistrict
litigation (MDL) in South Carolina federal court, where other
pending lawsuits against manufacturers may ultimately yield more
money for the water systems.
The new rule could make it easier for water systems that are
suing or considering suing companies that produce or use PFAS
near them for polluting waterways with the chemicals. Legal
experts say that is because the rules create an unambiguous
standard for what levels of PFAS in drinking water are
acceptable, and so could make it easier for water systems to
prove they have been harmed by the pollution.
(Reporting by Clark Mindock, Editing by Alexia Garamfalvi)