The federal government and state governments are taking actions in response to the continued concerns about environmental contamination and human health impacts caused by the presence of per-and polyflouroalkyl substances (PFAS) in the environment and particularly in drinking water supplies.
Congress Requires More Utilities to Test for PFAS Chemicals in Drinking Water
In late October, President Trump signed into law the America’s Water Infrastructure Act of 2018 (AWIA). Under this new law, thousands of additional water utilities will now be required to sample drinking water supplies to test for the presence of several PFAS related compounds. The law amends the Safe Drinking Water Act (SDWA) to require municipal water systems serving more than 3,300 people to begin monitoring for certain high-priority unregulated compounds. Previously, water systems serving less than 10,000 people were exempted from these requirements -- the change will create new monitoring obligations for an estimated 5,000 systems.
Among the compounds to be targeted by these expanded monitoring efforts are a number of ubiquitous PFAS chemicals. EPA has not set enforceable limits for these chemicals but possible evidence about human health implications of PFAS exposure have spurred increased regulatory attention. EPA recently published a lifetime health advisory of 70 ng/l (parts per trillion) for PFOS and PFOA, two fluorinated organic chemicals that are part of the larger group of chemicals referred to as PFAS.
State and Federal Permit Laws May Also Require POTWs to Monitor for PFAS
Wastewater utilities -- publicly owned treatment works (POTWs) -- may also be subject to expanded PFAS monitoring requirements. Because surface and groundwater discharges must comply with state-specific water quality standards and because compliance with state water quality standards is a permit condition for both NPDES permits as well as State Groundwater Discharge Permits, POTWs, as permittees, may be required to prohibit discharges that cause their facilities to pass through any pollutant in exceedance of state limits. Similarly, POTWs with EPA-approved industrial pretreatment programs are required to prohibit discharges that cause the POTW to pass through pollutants in violation of NPDES permit conditions, or that interfere with the treatment processes and operations of the POTW. Thus, if state or local limits exist for PFAS, POTWs may have to monitor influent and effluent for the presence of these compounds in order to ensure compliance with these terms.
Michigan recently instructed POTWs to identify “probable sources” of PFAS from significant industrial users, past and present, and sample discharges from those users according to a monitoring plan. If significant sources of PFAS are confirmed through sampling, a Michigan POTW must: (1) require the offending user to implement measures to reduce or illuminate the PFAS from its discharge; and (2) sample its own effluent for PFAS, and report exceedances of water quality standard to the state.
New York is considering adopting the toughest standards for PFAS chemicals in the county by the end of this year and is not waiting for EPA to act. Various other states have already promulgated rules or released guidance documents related to PFAS chemicals, leading to a patchwork of different regulatory approaches. If adopted, utilities there will soon have more monitoring and reporting requirements in addition to difficult to achieve limits.
What is on the Horizon for Utilities?
For POTWs required to monitor for PFAS, the general pretreatment regulations provide that POTWs must have the legal authority to carry out all inspection, surveillance, and monitoring procedures necessary to determine compliance or noncompliance with applicable standards. Utilities have a number of legal tools available to seek access to users’ records or physical property for monitoring purposes to identify sources of PFAS chemicals to pass on the costs and responsibility for their release.
Utilities have options for passing along the cost of monitoring, which can be a major concern. Recently, a number of municipal water authorities have filed suit against PFAS manufacturers seeking to recover costs of monitoring and cleanup. In one case, Suffolk County Water Authority v. 3M, No. 2:17-cv-06982 (E.D.N.Y. Nov. 30, 2017), the utility sought an injunction and damages for groundwater and drinking water contamination -- allegedly caused by releases from manufacturing processes using PFAS -- based on legal theories including strict products liability for defective design and failure to warn, negligence, public and private nuisance, and trespass.
Water utilities can also mitigate the burden of monitoring for PFAS through a number of proactive measures taken in anticipation of direct state or EPA required monitoring. While the AWIA monitoring provisions do not come into effect until 2021, water utilities should not count on a date extension and would be well-advised to develop a plan for compliance. In particular, water utilities should take steps to identify potential significant sources of PFAS in their systems by looking at current or historic operations which may involve use of these compounds. Water utilities should also consult state and local law to determine obligations and authority to monitor for PFAS, and strive to keep current on applicable federal regulatory action.
For more information on these developments or if you have any questions, contact one of the Michael Best attorneys listed here.