Trade associations and public water utilities have wasted no time in filing lawsuits to stop EPA regulations requiring maximum containment levels (MCL) for six per- and polyfluoroalkyl substances (PFAS) in drinking water.
On April 10, 2024, the EPA announced it issued the first-ever national, legally enforceable drinking water standard to protect communities from exposure to harmful PFAS, also known as “forever chemicals.”
“Scientific research on ‘legacy PFAS’… has shown just how nasty these chemicals can be,” states a Harvard Law Today article. “Decades of medical studies have produced evidence that [forever chemicals] are very disruptive to human biology, affecting a wide range of organs including the kidneys, liver, and thyroid. They have been associated with diabetes, reproductive harms, and many other conditions. It’s hard to think of a way that they don’t hurt you.
“Due to the pervasiveness of PFAS in the modern economy, they are found everywhere on earth. There’s rainwater that’s been found to violate the lifetime health advisory, there’s rainwater that violates the new drinking water standard. They’re finding PFAS on Everest and in polar bear brains. These are chemicals with unique properties that make them very mobile and extremely resilient on a geologic scale. PFAS are also resilient in terms of human biology. Once they’re in your body, they can continue to accumulate as you become exposed to more and more of them. Your body doesn’t really have a great mechanism for getting rid of them.”
The legal challenges include two lawsuits filed in the D.C. Circuit Court of Appeals just before the June 10 deadline. The Safe Drinking Water Act (SDWA) requires these types of challenges to be filed within 45 days of publication in the Federal Register.
In a petition filed June 7, 2024, the American Water Works Association (AWWA) and Association of Metropolitan Water Agencies (AMWA) stated the “EPA did not rely on the best available science and the most recent occurrence data, and used novel approaches as the basis for certain portions of the rule,” as well as that the rule will significantly impact the cost of drinking water because the “EPA has significantly underestimated the costs” of the rule.
“The AWWA/AMWA petition asserts that the rule is legally defective because it is arbitrary and capricious, in excess of statutory authority, unreasonable, not feasible, and not supported by the best available data and science,” Farella Braun + Martel LLP says in a JD Supra article.
The National Association of Manufacturers (NAM) and American Chemistry Council (ACC) filed a separate petition for review on June 10, 2024.
“The NAM/ACC petition does not recite the substantive bases for the challenge, but asserts that the rule exceeds EPA’s authority under the [SDWA], is arbitrary and capricious, and was not promulgated in accordance with procedures required by law,” the Farella Braun article continues.
“The lawsuits, filed by parties that may be directly or indirectly responsible for paying to remove PFAS from tap water, take aim at the EPA’s science, cost analysis, and rulemaking process,” notes NPR. “Legal experts say the pushback is expected, and it’s not yet clear how much traction these challenges will gain in court.”