Biden Administration Sets National PFAS Drinking Water Limits

For the first time in history, the federal government has placed legally enforceable limits on the presence of per- and polyfluoroalkyl substances (PFAS) in U.S. drinking water systems, declaring that some of the vast array of “forever chemicals” are a threat to human health and pose a serious cancer risk.

The U.S. Environmental Protection Agency (EPA) and the White House issued a press release on April 10, announcing the first ever national drinking water PFAS standards. In addition to the rule, the Biden Administration is also allocating nearly $1 billion to assist in PFAS mitigation efforts.

PFAS include a group of over 9,000 man-made substances, which are widely used to resist grease, oil and water. However, they are known to persist in the environment and build up in the human body, and researchers have identified a myriad of adverse health effects linked to the chemicals, including testicular cancer, kidney cancer, ulcerative colitis and other side effects.

Most of the PFAS health concerns have stemmed from water contamination problems, caused by the large volumes of the chemicals in aqueous film-forming foam (AFFF), which have been used by the military and firefighters for decades to fight fuel-based fires. During training and response exercises, these PFAS chemicals have been dumped into the environment and local water supplies, particularly around military bases, airports and firefighter training locations, causing many communities to have dangerous levels of the chemicals in their drinking water.

3M Company, DuPont, Chemguard, Inc., Tyco Fire Products and other manufacturers of chemicals and fire safety products now face thousands of PFAS water contamination lawsuits brought by local water providers and individuals diagnosed with various types of cancer. The companies also face hundreds of firefighter cancer lawsuits over exposure to AFFF, and evidence uncovered during litigation has further heightened concerns about the long-term risks associated with use of the chemicals.

“Drinking water contaminated with PFAS has plagued communities across this country for too long,” EPA Administrator Michael S. Regan states in the press release. “That is why President Biden has made tackling PFAS a top priority, investing historic resources to address these harmful chemicals and protect communities nationwide.”

The new rule sets enforceable limits for five different types of PFAS: perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), and C3 Dimer Acid (HFPO-DA); also known as GenX, as well as any combination of two or more of these chemicals. The new rule sets a Maximum Containment Level for PFOA and PFOS at 4 parts per trillion, and 10 parts per trillion for PFNA, PFHxS and GenX chemicals.

The EPA estimates that the new limits will need to be addressed by between 6% and 10% of the U.S.’s 66,000 public drinking water systems. All such systems will have three years to complete initial monitoring and must inform the public of the levels of PFAS detected. When PFAS are detected above the maximum containment levels, the system will have five years to reduce those levels to meet EPA standards.

U.S. Takes Other Actions to Address PFAS Contamination

In addition to PFAS limits, the new rule allocates $1 billion through the Bipartisan Infrastructure Law to help testing and treatment of PFAS in public water systems. That is in addition to another $9 billion already set aside in the Infrastructure Law to combat PFAS contamination, and another $12 billion earmarked for general drinking water imrovements.

This final rule was announced a day after the EPA released interim guidance on how to destroy and dispose of certain PFAS chemicals.

In addition, earlier this year the U.S. Food and Drug Administration announced a ban on PFAS chemicals in U.S. food packaging. The agency indicates that, as of this point, PFAS food packaging is no longer being sold on the U.S. market.

April 2024 PFAS Lawsuit Update

The new PFAS drinking water limits come as consumers and municipalities seek restitution for PFAS damages and contamination in the U.S. court system.

Given common questions of fact and law presented in thousands of lawsuits against AFFF manufacturers over the cancer risks linked to PFAS in firefighting foam, coordinated pretrial proceedings have been established in the federal court system before U.S. District Judge Richard M. Gergel in the District of South Carolina, where the claims are currently centralized for discovery and a series of early bellwether trials.

Although the manufacturers have reached proposed settlement over damages sustained by local water suppliers, who have been left with the costs associated with cleaning up the toxic chemicals, there have been no settlements in PFAS injury lawsuits brought by individuals exposed to the chemicals through drinking water, or firefighters directly exposed through AFFF foam.

Last year, Judge Gergel directed the lawyers involved in the litigation to select a group of 28 representative personal injury claims for an AFFF injury bellwether pool, involving plaintiffs who say they were exposed to chemicals that contaminated drinking water.

However, the first cases are unlikely to go before a jury for several years. In addition, the outcome of these claims will not have any binding impact on the other individual lawsuits, although they will be closely watched and may influence how much manufacturers may pay to settle lawsuits brought by other plaintiffs.