In February 2021, we reported on the EPA’s action whereby it reissued the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) that would have required water systems of a certain size to collect samples for 29 PFAS substances substances over a 12-month period. On December 20, 2021, the EPA finalized the UCMR 5 and kept all 29 PFAS on the sampling requirement list. The testing requirement contained therein place burdens on public water systems across the country that those systems absolutely must be aware of and adhere to.

EPA PFAS Testing Rules

The EPA indicated that the UCMR 5 “would provide new data that is critically needed to improve EPA’s understanding of the frequency that 29 PFAS are found in the nation’s drinking water systems and at what levels.” Beginning in 2023, all public water systems (PWS) with more than 10,000 customers will be required to monitor all 29 PFAS in water supplies. PWS with less than 10,000 customers must monitor for the 29 PFAS types; however, the testing requirement for the smaller PWS is subject to laboratory availability and funding availability, since the EPA is responsible for covering the costs of the analysis conducted by the smaller PWS. The testing requirements note specific testing requirements for each of the 29 types of PFAS and do not include aggregate testing methods for all 29 PFAS within a single water source. While the EPA recognized the efficiency in testing water sources for all 29 PFAS in the aggregate, it had concerns that the technology available to do so would stymie the ability of PWS to comply with the UCMR 5.

With respect to the laboratory availability caveat for smaller PWS, the EPA specifically notes in the UCMR 5 that while it expects laboratory capacity to increase such as to be able to meet demand for UCMR 5 testing, it nonetheless included the clause for testing subject to laboratory availability in the event that its prediction does not come to fruition.

Impact On Businesses

The EPA will utilize the data collected pursuant to the UCMR 5 testing to inform its decisions with respect to drinking water limits for PFOA and PFOS under the Safe Drinking Water Act, which it is expected to set within the next two years. The EPA PFAS testing requirements will therefore potentially have direct impacts on businesses beyond just water suppliers once a limit is established for drinking water.

Many companies assume that any regulation under the Safe Drinking Water Act will not impact them, as virtually no industries, aside from water utilities, have any direct impact on drinking water. However, this belief provides a false sense of security that must immediately be dispelled. There are three specific ways that drinking water limits for PFAS will trigger scrutiny on environmental practices of businesses: (1) effluent discharges into water sources; (2) waste sent to landfills that may leach into drinking water sources; and (3) properties abutting or in the vicinity of water sources.

Direct industry effluent discharges into water sources (which may not be drinking water sources, but may feed into drinking water sources) will be the low-hanging fruit target for local environmental agencies at the state level. Companies must ensure that they have all permitting in order, and it is advisable that the permitting specifically encompasses PFAS. Failing to do so will cause issues down the line when local environmental regulatory bodies look to determine, even retroactively, who PFAS water polluters are or were, as those agencies seek to hold businesses responsible for the costs associated with cleaning up PFAS in drinking water.

Waste management companies and businesses that send their industrial waste to landfills are also well advised to do a full compliance check. While many companies do not use PFAS directly in their own manufacturing processes, do the parts or other raw materials used in the manufacturing process have PFAS contamination issues? Are landfills doing due diligence to determine if they are accepting PFAS waste? A company could unknowingly send PFAS-laden industrial waste products to landfills, and so these are questions that companies must get answers to. Over time, it is possible that the PFAS may leach out of the landfill and find their way into local water sources. Environmental regulatory agencies will look to these sites, the owners of the sites, and potentially companies sending waste to the sites as responsible parties for PFAS contamination in waterways.

Finally, even businesses having nothing to do with PFAS or manufacturing from which PFAS could be a contaminant need to follow news regarding PFAS regulations. For example, has the property on which your business sits ever had fires that have required a local fire department to extinguish flames using foam (historically, a PFAS containing product)? What did the owner of the site prior to you use the site for? Were there possible PFAS contamination issues stemming from that prior business? Did your due diligence reports and tests when purchasing the property take PFAS into consideration? If PFAS were a contaminant on the land on which your business now operates, local environmental agencies will pursue cleanup costs from any such business regardless of knowledge or intent, and regardless of whether the PFAS issues were the result of a prior company on the site. These investigations and remediations can be extremely expensive and disruptive to businesses.