The EPA rescinded some of the first-ever ‘forever chemicals’ regulations. Will that get challenged in court?

Environmental groups are already calling EPA Administrator Lee Zeldin’s decision illegal.

Photo courtesy Johannes Roesler via Flickr.

The U.S. Environmental Protection Agency plans to weaken the first-ever federal restrictions for certain “forever chemicals” in drinking water, which were finalized by the Biden administration just last year.

The Trump administration’s announcement on Wednesday suggested that it believes at least some of the restrictions on certain per- and polyfluoroalkyl substances (PFAS) run afoul of the Safe Drinking Water Act — though environmental groups, of course, are already planning lawsuits in the other direction.

PFAS are a class of chemicals that have been used in thousands of commercial and consumer products, including firefighting foams, semiconductors and stain-resistant fabrics. They’re called “forever chemicals” because they don’t easily break down in the environment or once ingested by humans, and have been linked to some cancers.

Here’s what you need to know about the EPA’s decision, and the likely legal fight to come.

The rule in question

EPA Administrator Lee Zeldin’s announcement picked apart the first-ever federal regulations for PFAS in drinking water, which set tight limits that essentially required public water systems to eliminate the chemicals in tap water.

The regulations were finalized under the Safe Drinking Water Act, which gives the EPA authority to set drinking water standards for public water providers across the country. More specifically, the regulations set strict limits ranging from 4 to 10 parts per trillion for five specific PFAS and limits for various other PFAS if they are detected in a mix.

The EPA said that it would extend compliance deadlines for water providers by two years — until 2031 — and establish potential exemptions for two of the most notorious PFAS. The first is PFOA, or C8, which was previously used in Teflon. The second is PFOS, which was previously used in products like 3M’s Scotchgard as a stain repellent.

The EPA also said it would rescind and reconsider its regulatory determinations for three other PFAS, including GenX, in order to ensure the rules comply with the Safe Water Drinking Act. It also said it would review the limits for mixtures of PFAS.

Did the rules violate the Safe Drinking Water Act to begin with?

Some public water systems in the U.S. were surprised to find out their levels exceeded the legal limits, and were facing what they said were potentially billions of dollars in compliance costs.

Those costs would compound with recent mandates to replace lead pipes that could, though major multi-billion dollar settlements with PFAS polluters like 3M could help with the PFAS bills alongside $9 billion in federal dollars for chemical cleanup in the 2021 Bipartisan Infrastructure Law.

In addition to water provider concerns, the limits were challenged in court by industry groups including the U.S. Chamber of Commerce, the American Chemistry Council, American Fuel and& Petrochemical Manufacturers, the Recycled Materials Association and others.

Those groups told the D.C. Circuit Court of Appeals that the rule exceeded the EPA’s authority under the Safe Drinking Water Act, arguing the rule overstated the benefits of imposing the limits while underestimating costs.

The case has been held in abeyance, due to the change in presidential administration.

Make America Healthy Again?

Environmental groups — and prominent voices in the PFAS space, including actor and activist Mark Ruffalo — quickly denounced the decision by Zeldin, who had supported forever chemicals legislation when he was a US congressman.

(Note: The Trump administration actually kicked off regulatory efforts to address PFAS, though the Biden administration’s work was considered much more robust.).

Attorney Katherine O’Brien of the nonprofit environmental law firm Earthjustice said in a statement that Zeldin’s decision “is an illegal and cynical move that will needlessly perpetuate the epidemic of disease from PFAS contamination across our country.”

Emily Donovan, the co-founder of the group Clean Cape Fear — which was started in response to PFAS contamination in North Carolina — called it a “clear victory for the trillion-dollar chemical industry.”

She added that the Trump administration promised to “Make America Healthy Again” but said that “rescinding part of the PFAS drinking water standards does no such thing.”

But Matthew Holmes, the CEO of the National Rural Water Association, said that delaying the implementation of the PFAS rule is “the right thing for rural and small communities.”