The new Infrastructure Investment and Jobs Act aims to rebuild America’s roads, bridges, and rails and expand access to clean drinking water. It delivers more than $50 billion to the Environmental Protection Agency to improve the nation’s drinking water, wastewater, and stormwater infrastructure.
This $50 billion investment also includes $10 billion to address perfluoroalkyl substances (PFAS) in drinking water. The infrastructure law is just one part of the Biden administration’s push for the federal government to address PFAS contamination.
Businesses should be prepared for the implications and risks associated with the EPA broadening and accelerating the cleanup of PFAS.
What Are PFAS?
PFAS are a group of man-made chemicals that have been in use since the 1940s. PFAS have been found in a wide array of consumer products such as cookware, food packaging, and stain and water repellents used in fabrics, carpets, and outerwear.
Scientists are still learning about the health effects of exposures to mixtures of different PFAS. Many studies have examined possible relationships between PFAS exposure and health effects in humans, but most of these studies have tested doses of PFAS that are higher than levels found in the environment. Humans and animals react differently to PFAS, and not all effects observed in animals may occur in humans.
How Does the Infrastructure Law Address PFAS?
Following passage of the infrastructure law, the EPA will be using funding to make significant investments to address PFAS contamination. The delivery of $50 billion in funding to the EPA includes the following:
- $1 Billion to the PFAS Clean Water State Revolving Fund (CWSRF). This fund was created by the 1987 amendments to the Clean Water Act as a financial assistance program for a range of water infrastructure projects. Under the CWSRF, the EPA provides grants to all 50 states and Puerto Rico to capitalize state CWSRF loan programs. The states contribute an additional 20% to match the federal grants. The CWRSF programs function like environmental infrastructure banks by providing low-interest loans to eligible recipients for water infrastructure projects. As money is paid back into the state’s revolving loan fund, the state makes new loans to other recipients for high-priority water-quality activities.
- $4 Billion to the PFAS Drinking Water State Revolving Fund (DWSRF). This fund provides financial assistance to publicly owned and privately owned community water systems, as well as nonprofit non-community water systems, for drinking-water infrastructure. Projects must either facilitate the system’s compliance with national primary drinking-water regulations or significantly further the health protection objectives of the Safe Drinking Water Act. PFAS chemicals qualify as emerging contaminants, as well as synthetic organic chemicals, and infrastructure needs that address PFAS are eligible projects.
- $5 Billion to the PFAS Small & Disadvantaged Fund. This fund was created pursuant to the Safe Drinking Water Act, which authorizes the EPA to award grants to states to assist underserved, small, and disadvantaged communities that are unable to finance activities needed to comply with the Safe Drinking Water Act, as well as respond to a drinking-water contaminant like PFAS.
The infrastructure law represents a historic investment in remediating drinking water contaminated with PFAS and should signal to businesses that the Biden administration has made these emerging contaminants a top priority.
The Infrastructure Law Is One Piece of PFAS Puzzle
The new infrastructure law is just one piece of the puzzle in the Biden administration’s accelerated efforts to address PFAS.
For example, on Oct. 18, EPA Administrator Michael S. Regan announced the agency’s PFAS Strategic Roadmap—laying out a whole-of-agency approach to addressing PFAS. The roadmap sets timelines for the EPA’s plans to take specific actions on PFAS.
These actions include a new national testing strategy to accelerate research and regulatory development, a proposal to designate certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and actions to broaden and accelerate the cleanup of PFAS.
Notably, the roadmap states that the EPA will also “seek to hold polluters and other responsible parties accountable for their actions, ensuring that they assume responsibility for remediation efforts and prevent any future releases.”
In addition, President Biden’s Build Back Better Agenda includes investments for the EPA to conduct monitoring across the country for 29 PFAS compounds in drinking water through the Unregulated Contaminant Monitoring Program.
Implications for Businesses
Businesses should be prepared for the risks and implications associated with the EPA broadening and accelerating the cleanup of PFAS contamination. While the EPA has found ways to remove PFAS from the environment, such as activated carbon treatment and ion-exchange resins, remediating PFAS in drinking water can be cost-prohibitive.
The EPA has also signaled that it will not shy away from taking enforcement action against entities that discharge PFAS into the environment. The agency has already taken enforcement actions against entities for alleged violations of federal environmental laws and regulations pertaining to PFAS. For example, the EPA recently supported the issuance of enforcement orders at facilities in Alabama, West Virginia, and North Carolina.
Considering these developments, businesses that use or manufacture PFAS at their facilities should understand how the federal government’s actions on PFAS could affect their business operations, assess potential costs associated with compliance, and understand their risk for future liability.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Jeffrey Dintzer is a partner and Gregory Berlin is a senior associate in the Alston & Bird Environment, Land Use & Natural Resources practice group in Los Angeles.