Earlier this week, the D.C. Circuit Court granted the Environmental Protection Agency (the “EPA”) a 60-day stay of litigation regarding the agency’s PFAS drinking water rule, allowing the Trump administration time to review the first of its kind federal drinking water PFAS regulation which previously set stringent limits on 6 PFAS in drinking water.
While this requested stay comes as no great surprise given the Administration’s commentary on the EPA, as PFAS has appeared at the State level to be a bit red and blue color blind, having the federal government pause and potentially take a step backwards in regulating PFAS in drinking water will put the state regulatory apparatus in a bit of a pause mode as well.
The U.S. Court of Appeals for the District of Columbia Circuit entered an order granting a motion filed earlier in the day by EPA in American Water Works Association (AWWA), et al. v. EPA, where the agency asked the court “to hold this matter in abeyance for 60 days to allow new Agency leadership to review the underlying rule.” In English, give us some time to digest what the new Administration wants to do here on this front before proceeding with this litigation.
As requested, the Court granted the request and the consolidated case is “held in abeyance pending further order of the court,” the order says, directing EPA to file motions to govern future proceedings in the litigation by April 8.
As noted in the court filing, EPA’s Feb. 7 motion seeking the stay advised that new leadership at the agency “is in the process of familiarizing itself with the issues presented in this case and related litigation.” The motion was unopposed. The case is being briefed to the court.
Per Suzanne Yohannan of IWP News, the Safe Drinking Water Act rule, issued last April 2024, set first-time regulatory limits for PFAS in drinking water, establishing a maximum contaminant level (MCL) of 4 parts per trillion (ppt) individually for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), and an MCL of 10 ppt individually for hexafluoropropylene oxide dimer acid (HFPO-DA), more commonly referred to as a GenX chemical; perfluorononanoate (PFNA), and perfluorohexanesulfonic acid (PFHxS).
Opponents of the rule (i.e., chemical and manufacturing trade groups and various water utility groups) filed suit claiming that the EPA lacked authority in this arena and that its cost benefits analysis was flawed.
Green Sprouts – while the move by the Administration is not a surprise, given the collective red and blue state hodge podge of approaches at the State level, some clarity from the federal government on the science and on acceptable levels of PFAS, if any, in our drinking water would have been welcome. Pausing the implementation for 60-days to give the new Administration time to review the standard, if ultimately modified by the new Administration, would only be delaying what the States are looking for which is clarity of what is safe and acceptable levels of PFAS, if any, in drinking water.
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If you have any questions about this Alert, please contact Brad A. Molotsky, Lindsay Ann Brown, Lori A. Mills, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.