New PFAS rules are going to have major implications for the industry and public sector

The updated USEPA guidance provides some clarity on monitoring requirements, remediation strategies and compliance expectations for PFAS. Our team has already reviewed these changes and is ready to help industries reduce their risk and align their practices with regulatory standards.

Absolutely, the USEPA released last week (April 10, 2024) a new National Primary Drinking Water Regulation (NPDWR) for six PFAS. This regulation sets legally enforceable Maximum Contaminant Levels (MCLs) for PFOA, PFOS, PFHxS, PFNA, and HFPO-DA and sets a hazard index (HI) for two or more of four PFAS as a mixture (PFNA, PFHxS, HFPO-DA, and PFBS). Public water systems are required to monitor these PFAS and have until 2027 to complete initial monitoring and inform the public about the levels of PFAS in their drinking water. If levels exceed the MCLs, water systems have until 2029 to implement solutions to reduce PFAS concentrations and must notify the public of any violations.

By 2025, public waterways will be subject to mandatory testing, leading into the 2029 deadline for adherence emphasizes the urgency. However, these measures could be considered moderate in light of the potentially stricter regulations that states may impose on private industries. States could decide the implementation of regulations is needed sooner to prevent the impact on public water systems in their regions, necessitating thorough preparation and risk assessment by private industries.

Private industries need to recognize their role in the full PFAS cycle, including waste disposal practices—both authorized and unauthorized—that may affect water systems. For example, if private industrial stormwater runoff containing PFAS is not properly treated, it could compromise taxpayer-funded water treatment facilities. This type of situation is under close scrutiny by NGOs and other organizations, which are increasingly resorting to litigation. True diligence in this case goes beyond regulatory compliance, it encompasses proactive risk assessment and informed decision-making for risk mitigation to reduce potential hazards.

The public sector, including water utilities, will need to focus time and resources on monitoring PFAS in their treatment and distribution systems. Water utilities will also need to determine whether their treatment infrastructure requires upgrades or replacements to remove PFAS to low levels and comply with the MCLs. Water management planning, including identifying funding mechanisms, will be important to expedite the development of these solutions and ensure that water utilities are compliant by 2029.

The USEPA is proposing to designate two widely used PFAS chemicals, PFOA and PFOS, as hazardous substances under The Resource Conservation and Recovery Act (RCRA) which would impact handling, storage and disposal of PFAS. 

This designation under RCRA, coupled with the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) implications, means that industries and the public sector must prepare for more rigorous environmental compliance. It will necessitate a proactive approach to manage the presence of PFAS in operations and ensure adherence to safety and disposal standards. Designation of PFAS as hazardous substances will also require PFAS assessment as part of due diligence Phase I assessments (environmental site assessment) during property acquisitions and sales, potentially exposing parties to increased liability.

Companies may hesitate due to fear of evolving regulations or discovering past PFAS usage before ownership. However, proactive engagement and understanding of potential impacts are crucial to reduce the increasing liability associated with full PFAS lifecycle, including stormwater, air, waste and other multi-media impacts. Waiting could result in missed opportunities to mitigate risks effectively, or expose you to litigation from NGOs or other riverkeeper organizations.

Agility, flexibility, and collaboration are key. Many public utilities are developing water management plans that address PFAS in light of the new MCLs and seeking funding to advance treatment and monitoring solutions. Water industry professionals such as GHD can help public utilities develop and optimize these plans and design the infrastructure needed to comply with the MCLs within the next five years.

Companies should implement strategies now to address PFAS, including conducting inventories to understand possible risk areas, regular testing and adapting to regulatory changes. Proactive measures can mitigate future compliance challenges. Address hesitations, understand compliance urgency and recognize the responsibility to safeguard the environment. Acting now is imperative to navigate regulatory complexities effectively.
 
As a company entrenched in this evolving landscape, we stand ready to guide our clients through these changes and help them prepare effectively to mitigate risk.