Associations file opening brief in PFAS case

On Oct. 7, the American Water Works Association (AWWA) and the Association of Metropolitan Water Agencies (AMWA) filed the organizations’ opening brief with the United States Court of Appeals in the case of AWWA vs. U.S. Environmental Protection Agency (EPA), related to EPA’s final drinking water regulation for six per- and polyfluoroalkyl substances (PFAS), known as the National Primary Drinking Water Regulation (NPDWR).

Oct. 7 was the court-imposed deadline AMWA and AWWA had to submit their initial brief that will carry the bulk of the organizations’ arguments against the rule. In addition to the 13,000-word AMWA/AWWA brief, a group of chemical sector organizations plan to file a separate 13,000-word brief with the court detailing their own concerns with the NPDWR.

In June, AMWA and AWWA filed a challenge to the NPDWR, alleging that EPA did not properly follow the requirements of the Safe Drinking Water Act (SDWA) when promulgating the rule. Both organizations have expressed support for the agency’s decision to regulate PFOA and PFOS in drinking water, but have raised concerns that the rule’s health and financial impacts were not accurately characterized. They also said compliance with the new rule will require community water systems across the country to eventually dispose of water treatment residuals containing certain PFAS that EPA has also proposed to designate as hazardous substances.

AWWA CEO David LaFrance and AMWA CEO Tom Dobbins released the following joint statement Oct. 7 following the filing of the opening brief:

“AWWA and AMWA are committed to sound, science-based drinking water regulations that protect public health in a cost-effective manner. That is why our organizations supported EPA’s decision to issue drinking water standards for PFOA and PFOS, and why we each provided robust comments when EPA proposed its rule last year.

“U.S. Congress enacted the original Safe Drinking Water Act 50 years ago, and today the statute provides EPA with a scientific framework to keep water safe and protect public health. The statute sets forth a clear process for scientifically evaluating contaminants, incorporating public comments as rules are developed, and analyzing the costs and benefits of those rules. When properly followed, the Safe Drinking Water Act process helps EPA identify the contaminants of greatest concern and prioritize investments to maximize public health protection.

“In its PFAS rule, EPA departed from the fundamental requirements of the Safe Drinking Water Act by truncating the rulemaking process, curtailing distinct opportunities for public comment, and employing a novel equation rather than a clearly defined measurement as a standard for certain PFAS. In its effort to move quickly, EPA failed to consider critical data that would have resulted in a more scientifically defensible regulation.

“The final PFAS standards will be binding upon the nation’s public water systems for decades and will carry significant implications for public health and household water bills. It is essential that EPA get it right, following the clear Safe Drinking Water Act process set forth by Congress. AWWA and AMWA look forward to the Court’s review of our arguments and the opportunity for EPA to recast the rule in a manner that is consistent with the law.

“Our two organizations will continue to assist our members as they evaluate and address PFAS impacting drinking water in their communities.”

According to the organizations, once the brief is filed, AMWA will publish the document on the association’s PFAS litigation webpage, which includes an inventory of all major filings in the case so far. EPA is expected to file its response brief with the court by late December, and AMWA and AWWA will have an opportunity to respond in writing to those arguments early next year.

The final rule will regulate PFOA and PFOS to MCLs of 4 parts per trillion (ppt). It will also regulate PFHxS, PFNA, GenX to 10 ppt and will mandate water systems to measure for a mixture of at least two of the four chemicals PFHxS, PFNA, GenX and PFBS using a hazard index. The final NPDWR requires:

• Public water systems must monitor for these PFAS and have three years to complete initial monitoring (by 2027), followed by ongoing compliance monitoring. Water systems must also provide the public with information on the levels of these PFAS in their drinking water beginning in 2027.
• Public water systems have five years (by 2029) to implement solutions that reduce these PFAS if monitoring shows that drinking water levels exceed these MCLs.
• Beginning in five years (2029), public water systems that have PFAS in drinking water which violates one or more of these MCLs must take action to reduce levels of these PFAS in their drinking water and must provide notification to the public of the violation.

AWWA has said that standards of 10 ppt for PFOA and PFOS are more appropriate. A recent analysis from AWWA conducted by Black & Veatch and Corona Environmental using UCMR 5 data found that:

• The installation of new drinking water treatment for PFAS will reduce PFAS exposure from drinking water for 35 million Americans, roughly half of the EPA’s estimate as part of the final rulemaking.
• More than 7,000 entry points will need capital improvement investments to install treatment of PFAS in drinking water, totaling $37.1 to $48.3 billion in the next five years. Combined with costs of operations and maintenance the annualized cost is estimated to be $2.7 to $3.5 billion, roughly twice the EPA’s estimate as part of the final rulemaking.

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