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New PFAS Warnings Put Utility Reputations at Risk, Not Liability

June 17, 2022, 5:22 PM

Water utilities are likely to face public relations difficulties following the EPA’s announcement this week of PFAS-related health advisories, water attorneys say, even if legal challenges are less of a concern.

Utilities will be challenged to promote the drinking water they provide as safe after the EPA warned that “forever chemicals” may be harmful at levels undetectable in drinking water, since the utilities won’t know if their water exceeds those levels.

Most water utilities will be complying with state and federal water quality regulations, but “the public is not going to be satisfied with these answers because a health advisory isn’t a binding regulation,” said Ashley Campbell, an attorney at SL Environmental Law Group in Concord, N.H., who represents public utilities.

The Environmental Protection Agency on Wednesday issued interim advisories for PFOA and PFOS, the most well-studied members of a group of “forever chemicals” called per- and polyfluoroalkyl substances, or PFAS. Thousands of PFAS chemicals exist and are found in consumer, commercial, and industrial products.

The updated advisory levels of .004 parts per trillion for perfluorooctanoic acid (PFOA) and .02 ppt for perfluorooctanesulfonic acid (PFOS) dramatically tighten the EPA’s 2016 advisory of 70 ppt for either compound or a combination of both.

“I don’t think it changes a lot from the legal perspective,” Campbell said.

Many states have a maximum contaminant level for the substances already established, and the health advisories don’t change the legal landscape for utilities there, she said. Utilities operating in states without PFAS regulations can use the advisories as guidance about how the substances may be regulated in the future, Campbell said.

Utilities Concerned

The health advisories are worrying water utilities nonetheless because the EPA is effectively telling the public that their water may be unsafe even if PFOA and PFOS can’t be measured, said Steve Via, director of federal relations at the American Water Works Association. The association represents over 4,300 utilities.

“Now the public has a number that’s very, very low. Even if you’re a very responsible utility, now you’ve got to talk about that there’s a possible risk with water” below detectable levels, Via said.

Utilities are also having to comply with the EPA’s Fifth Unregulated Contaminant Monitoring Rule, or UCMR 5, which was finalized last year and establishes nationwide monitoring for 29 PFAS and lithium in drinking water.

It’s important for utilities to be transparent to the public about risk, said Greg Kail, AWWA communications director.

“We know there is uncertainty, but the simple act of having the conversation can go a long way toward helping the utility maintain trust with its customers,” Kail said.

‘Alarmist’ Terminology

Some utilities are urging other water works to make PFAS sound less scary to their customers as authorities develop new ways to monitor for the substances. The substances are known as “forever chemicals” because they may remain in the environment indefinitely and are thought to cause cancer and other health problems.

The term “forever chemicals” is a term “alarmist” journalists use to get clicks, and utilities shouldn’t use terminology used in the media that might scare customers, said Ruben Rodriguez, senior director for external affairs at American Water, a water utility based in Camden, N.J.

The utility conducted a Water Research Foundation study on how utilities should effectively communicate risks of PFAS to the public.

“The recommendation is to get away from that language,” Rodriguez said, speaking this week about utilities’ PFAS risk management communication at the AWWA annual conference in San Antonio.

If utilities are fielding questions from customers about how they can make water safe when safe levels of PFOA and PFOS can’t be measured, EPA recommends that they point customers to EPA’s frequently-asked-questions website.

“The lower the levels of PFOA and PFOS, the lower the risk,” Greg Carroll, director of the technical support center in the EPA’s Office of Water, said at the AWWA conference. “Water systems may not be able to eliminate all of this, but they can successfully reduce the risk.”

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com