By Erica Klenicki, Deputy General Counsel, Litigation, National Association of Manufacturers
October 9, 2024 - This week, the National Association of Manufacturers (NAM) filed its opening brief in our challenge to the EPA’s final rule setting national drinking water standards for PFAS, setting forth the many reasons why the rule is unlawful and must be vacated in its entirety. You may recall that back in June, we joined with the American Chemistry Council to file a petition in the D.C. Circuit challenging the rule which sets standards for six PFAS substances in municipal water systems (PFOA, PFOS, PFHxS, HFPO-DA, PFNA and PFBS).
PFAS are a diverse group of thousands of chemicals essential to modern life, sustaining technologies like semiconductors, telecommunications, defense systems, medical devices and renewable energy sources. As our brief makes clear, the NAM supports rational regulation of PFAS that allows manufacturers to continue supporting critical industries, while developing new chemistries and minimizing any potential environmental impacts. But that requires a measured and evidence-based approach that the rule lacks.
The rule sets a “Maximum Contaminant Level” for each of the six substances at or near zero—equivalent to a single drop 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 will bring litigation against manufacturers to recoup those costs—indeed, this wave of lawsuits has already begun. Enterprising plaintiffs’ lawyers have also started using the infeasible standards to assert toxic tort and personal injury suits against manufacturers.
Our brief explains that in plowing ahead with this unattainable rule, the 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 in its entirety. Briefing in this case will continue through the spring, with a decision expected in late 2025 or early 2026.
You may reach Erica Klenicki at eklenicki@nam.org.
Comments