The First Federal Regulation of “Forever Chemicals” in Drinking Water

Nina Ordinario
Associate Editor
Loyola University Chicago School of Law, JD 2024

On March 14, 2023, the Biden-Harris Administration and the EPA announced a proposed rule for regulating public drinking water called the PFAS National Primary Drinking Water Regulation (NPDWR). If finalized, this rule would be the “first-ever national drinking water standard” by regulating chemicals in drinking water. Although many supporters praise the proposed rule, critics wonder whether the federal government is providing public water systems and municipal utilities with enough resources to implement the rule and succeed.

What are PFAS?

Per- and polyfluoroalkyl substances, called PFAS, are manufactured chemicals used in various industrial and consumer products, such as nonstick cookware, waterproof clothing, food packaging, and firefighting foam. Manufacturers utilize PFAS to make products water and oil resistant. PFAS are also referred to as “forever chemicals” because they can take hundreds to thousands of years to decompose naturally, and they are difficult and expensive to destroy. As a result, PFAS can spread to the water, soil, and air in a variety of ways. For example, deployed firefighter foam may spread into the water and soil. In addition, as products decompose in landfills, PFAS can spread into the water and soil. Manufacturing facilities may also excrete gaseous PFAS into the air.

For many years, researchers have studied the effects of PFAS on humans. Exposure to PFAS has been linked to “reproductive health issues, decreased immune response[s], and an increased risk of some cancers, including kidney, prostate, and testicular cancers.” Research has shown that humans can be exposed to PFAS in a variety of ways, such as working as a firefighter, chemical manufacturing and processing, eating contaminated foods, breathing contaminated air, and “[u]sing products made with PFAS or that are packaged in materials containing PFAS.” In addition, most humans are exposed to PFAS through drinking water contaminated with PFAS.

How do the Biden-Harris Administration and the EPA plan to address PFAS in drinking water?

Under the EPA’s proposed rule, public water systems and municipal utilities will be required to monitor PFAS levels in public water systems, notify the public if PFAS levels exceed regulatory standards, and treat the water to maintain safe PFAS levels. Currently, twenty-two states have adopted their own PFAS drinking water standards. Implementing federal PFAS standards would provide uniform guidance to address this serious environmental and public health concern. The EPA states that this proposed rule is part of its larger PFAS Strategic Roadmap plan for eliminating PFAS in the environment and holding polluters and manufacturers accountable.

Who will pay for the PFAS water treatment initiatives and systems?

Currently, there are various methods for removing PFAS from water. However, these methods can be expensive to implement and often require installing or updating treatment facilities. The EPA estimates that implementing these methods can cost hundreds of millions of dollars annually to public water systems and municipal utilities. An engineering expert on behalf of the American Water Works Association (AWWA) estimates that implementing the proposed rule nationwide will cost utilities $38 billion to meet the EPA’s PFAS standards.

In light of the estimated costs, the EPA seems confident that sufficient funding will be available to support communities. Under the Bipartisan Infrastructure Law, the federal government will invest $9 million over five years to help “communities facing drinking water impacted by PFAS and other emerging contaminants.” Specifically, $4 billion will go to the Drinking Water State Revolving Fund (DWSRF), and $5 billion will go to the Emerging Contaminants in Small or Disadvantaged Communities Grant Program.

Considering the high cost of updating current or installing new water treatment facilities to comply with the proposed rule, many opponents doubt that the proposed rule can be effectively implemented. Most critics believe it will take years and possibly decades before public water systems and municipal utilities can implement water treatment methods. In addition, critics believe that more funding than anticipated will be necessary in order to meet the EPA’s stringent PAS standards.

How feasible will it be to effectively implement the PFAS NPDWR nationwide?

PFAS in drinking water is a tremendous public health concern that needs federal regulation. Eliminating PFAS in drinking water could improve the health of our society in the long term and save lives. However, for a federal regulation of this scope to be properly implemented, there needs to be thorough consideration of the plan’s feasibility.

For example, the EPA will need to allow public water systems ample time to obtain funding and implement water treatment methods. In addition, the federal government should consider further avenues for lowering implementation costs. Although the EPA has announced $9 billion will be allocated to these initiatives, this is unlikely enough funding for all public water systems and municipal utilities. Further, the federal government should create specific action plans for helping disadvantaged communities implement water treatment methods. Disadvantaged communities with fewer resources often have difficulties maintaining compliant water quality. The proposed rule will create more stringent regulations that they will continue to struggle to meet without the appropriate funding. Lastly, if the communities are not provided with funding, the burden will likely fall on ratepayers and community members to support water treatment initiatives.