PFAS and PFOS Will Be Subjects of Litigation for Years to Come

On April 10, 2024, the U.S. Environmental Protection Agency (U.S. EPA) finalized a National Primary Drinking Water Regulation (“NPDWR”) for six Perfluoroalkyl (“PFAS”) and Polyfluoroalkyl (“PFOS”) substances:

• Perfluorooctanoic acid (“PFOA”)
• Perfluorooctane sulfonic acid (“PFOS”)
• Perfluorohexane sulfonic acid (“PFHxS”)
• Perfluorononanoic acid (“PFNA”)
• Hexafluoropropylene oxide dimer acid (“HFPO-DA”, commonly known as GenX chemicals)
• Perfluorobutane sulfonic acid (“PFBS”)

The National Primary Drinking Water Regulations (“NPDWR”) issued by U.S. EPA established the Maximum Contaminant Levels (“MCLs”), which will be allowed in drinking water in the U.S.  Once implemented and enforced, EPA estimates that this regulation will reduce PFAS exposure for approximately 100 million Americans served by public drinking water systems.  EPA has calculated that fewer people will get cancer or liver disease, pregnant women will have reduced risks, and more and children and infants will be stronger and grow healthier, leading to approximately 1.5 billion in yearly health benefits.

However, the enforcement of these drinking water standards using available treatment technologies will impose great costs on drinking water utilities. Public water systems must complete initial monitoring by 2027 and then begin ongoing compliance monitoring thereafter. Beginning in 2027, public water systems must include PFAS monitoring data in Consumer Confidence Reports. Starting in 2029, if public water systems have PFAS concentrations that exceed the MCLs in drinking water, they must take action to reduce levels of these PFAS to below MCL values and notify their consumers.  This means that drinking water utilities may need to upgrade their treatment facilities with additional treatment steps to decrease PFAS concentrations below the MCLs. The EPA estimates the cost of PFAS monitoring and treatment for public water systems to be $1.5 billion per year.

It is a near certainty that many Public Water Systems will seek to recover their costs of compliance by suing the parties who have introduced PFAS and PFOS into the water in their systems.  Those who manufactured or used PFAS or PFOS will be subject to lawsuits and should prepare proactively for this situation.