On June 11, 2024, the NAM filed a petition in the D.C. Circuit challenging EPA’s final rule setting individual standards for six per- and polyfluoroalkyl substances (PFOA, PFOS, PFHxS, HFPO-DA, PFNA and PFBS) in municipal water systems. PFAS are a diverse group of chemicals essential to modern life, including in the transformers used to power electric grids; in the semiconductors and solar components needed for clean energy transition; and in the aircraft, munitions, fire suppression systems and communication devices required for national security. EPA’s new rule sets a “Maximum Contaminant Level” for each of the six substances at or near zero—equivalent to a few drops in an Olympic swimming pool. The standards are so low that full compliance may never be achieved—meaning PFAS manufacturers and users will be unable to obtain discharge permits. And as municipalities face the high costs of coming into compliance (an estimated $3.8B annually), water systems, state attorneys general and other stakeholders have, and will continue to, bring litigation against manufacturers to defray those costs. Enterprising plaintiffs’ lawyers have also started using the infeasible standards to assert toxic tort and personal injury suits against manufacturers.
In our opening brief, filed on October 7, 2024, we explain that in plowing ahead with its unattainable rule, EPA violated the express requirements of the Safe Drinking Water Act and engaged in arbitrary and capricious decision making in violation of the Administrative Procedure Act. The rule’s many deficiencies include:
• A deeply flawed cost-benefit analysis that combines costs and benefits for multiple substances into a group determination, ignores substantial costs raised by commenters and improperly relies on “nonquantifiable benefits” where it lacked empirical data;
• A woefully incomplete feasibility analysis that fails to grapple with whether the technology and facilities necessary for compliance even exist;
• The novel and unlawful use of a “hazard index” (for PFHxS, HFPO-DA, PFNA, and PFBS), never before used in the SDWA’s 50-year history;
• Failure to consider reasonable alternatives or respond meaningfully to public comments that undercut its judgment; and
• Significant procedural deficiencies in regulating the hazard index substances like collapsing two distinct rulemaking steps into a single step and forgoing Science Advisory Board review along the way.
For these reasons, we are asking the D.C. Circuit to vacate the rule.