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EPA’s new PFAS regulations for drinking water challenged in lawsuit by manufacturers and water utilities groups

6/13/24

By: Kevin M. Ringel, Kevin G. Kenneally, and Joshua G. Ferguson

This week, in a lawsuit challenging new PFAS regulations put in place by the Environmental Protection Agency (“EPA”) in April, the American Chemistry Council and National Association of Manufacturers said the EPA’s rule amounted to an abuse of discretion. PFAS is a class of chemicals also called per- and polyfluoroalkyl substances or “forever chemicals.” The landmark EPA regulation, which we wrote about here [https://www.fmglaw.com/business-litigation/epa-announces-final-national-primary-drinking-water-regulation-for-pfas/], mandates that water providers reduce PFAS levels to 4.0 parts per trillion for PFAS.   

In a separate filing last Friday mirroring the challenge by the chemical and manufacturing groups, the American Water Works Association and the Association of Metropolitan Water Agencies prepared a separate filing that argued the EPA had underestimated the costs of the new rule. 

A challenge to the new EPA standard is significant for its impact on ongoing litigation in which Plaintiffs, including water systems, allege negligence by manufacturers and cite to the 4.0 parts per trillion standard in their Complaints in reciting allegations of hazard. While the EPA’s rule directly regulates public water systems, Plaintiffs are already relying on the EPA’s lower acceptable level as evidence of their harm. 

Manufacturers should continue to monitor this challenge to the EPA’s new standard, as it may increasingly become a focus of allegations made against them. Freeman Mathis & Gary serves as national counsel for clients in toxic exposure litigation and is defense counsel in the Aqueous Film-Forming Foam (AFFF) MDL pending in Charleston, South Carolina.  

For more information, please contact Kevin Ringel, Josh Ferguson, Kevin Kenneally, or your local FMG attorney.