'Forever chemical' water quality standards threatened by lawsuits, EPA review

Two national water utility trade groups, whose members include most of Long Island's public water providers, have filed a federal lawsuit seeking to overturn the EPA's limit on "forever chemicals" in drinking water established last year.

The suit has been consolidated with one brought by chemical and manufacturing trade groups and one of the largest makers of PFAS, which also seeks to rescind the EPA’s strict limits.

Water suppliers across the nation face estimated annual costs of $1.5 billion to meet the new drinking water standards.  But the legal challenges have unnerved health experts and communities that have been heavily affected by contamination from PFAS manufacturing plants and industrial dumping, prompting more than a dozen local and national nonprofit groups, three toxicologists and 17 states, including New York, and the District of Columbia, to submit briefs in support of the regulations.

The concern has escalated since Jan. 20: The Trump administration has asked the U.S. Appeals Court for time to review litigation and the EPA rules set by the Biden administration's EPA. Environmental health advocates have said reversing the rule would ensure that millions of people continue to be exposed to chemicals that the EPA has determined to be toxic even in minute amounts.

PFAS — or per- and polyfluoroalkyl substances — are used in everyday household products as well as manufacturing, and have contaminated Long Island's drinking water. New York established a limit of 10 parts per trillion in drinking water in 2020, but the federal regulation set a much stricter standard of 4 parts per trillion. Biden's EPA said, when the regulation was finalized, it "will protect 100 million people from PFAS exposure, prevent tens of thousands of serious illnesses, and save lives."

'Dangerous precedent' 

The plaintiffs' briefs claim the EPA failed to follow long-established procedures in determining its maximum contaminant levels or MCLs, that the agency used a flawed cost-benefit analysis, and that the EPA cannot regulate mixtures of these PFAS chemicals.

The Safe Drinking Water Act "requires regulation of substances one at a time," according to the brief submitted by PFAS manufacturer Chemours, based in Wilmington, Delaware.

In an interview, Jeff Szabo, the CEO of the Suffolk County Water Authority, said, "The EPA did not follow the proper process" when it established the regulation in April.

"This could set a dangerous precedent for future contaminants or anything else that the EPA wanted to do," said Szabo, who was vice president of the board of the Association of Metropolitan Water Agencies when it voted to pursue litigation, and is president of the national organization.

Szabo declined to say whether he voted to approve the lawsuit. The Suffolk County Water Authority, the only Long Island water provider that is a member of the Metropolitan Water Agencies, has not taken a public position on the suit.

The majority of Nassau and Suffolk county water suppliers are members of the American Water Works Association, according to a Long Island Water Conference spokesman, though none are named as plaintiffs or filed amicus briefs. 

The Nassau Suffolk Water Commissioners’ Association, a conglomerate of 21 local water commissioners, has not taken a public position on the case either. 

Local and national environmental health advocates have expressed dismay that water suppliers would join with industry groups to oppose clean water regulations.

"We would expect this kind of lawsuit from the chemical industry," said Adrienne Esposito, executive director of Citizens Campaign for the Environment in Farmingdale. "But it's despicable that the water suppliers would join in and work to weaken our public health protection laws."

In early February, the new administration asked the D.C. Circuit Court of Appeals for 60 days to review the regulation established under President Joe Biden, arguing that courts in the past have allowed agencies to "review and, if appropriate, revise their past decisions." The pause request also said "judicial resolution" may not be necessary.

EPA spokesman Jeff Landis declined to discuss the suit, the 60-day review or whether the EPA remained committed to the PFAS regulations, "in keeping with a long-standing practice" not to comment "on any current or pending litigation."

Advocates have expressed concern that the pause may mean that the new EPA will decide not to defend the lawsuit. The Trump administration has already withdrawn Biden's plan to reduce manufacturers' discharges of PFAS into U.S. waterways.

The new EPA administrator, Lee Zeldin, voted in favor of PFAS regulations for drinking water when he represented New York's first congressional district, from 2015 to 2023. But Zeldin, from Shirley, has promised severe budget and staffing cuts at the agency. "Even if they did want to defend it," said Mary Grant, who directs the clean water campaign at the nonprofit Food & Water Watch, "do they have the staffing to defend it?"

'Unfortunate bedfellows' 

The American Water Works Association, whose members include most Long Island suppliers, and the Association of Metropolitan Water Agencies, a trade organization representing the 180 largest public water systems in the United States, filed their lawsuit against the EPA in June 2024. Three days later, the National Association of Manufacturers, the nation’s largest industrial trade group; the American Chemistry Council, the chemical industry’s trade group; and Chemours, a spinoff of DuPont and the maker of Teflon, filed a lawsuit as well, likewise asking that the rule be rescinded.

The National Association of Manufacturers declined to comment. Chemours referred a request for an interview to the American Chemistry Council. In an emailed statement, the council repeated the arguments in its brief, that the rule "was developed using severely flawed science," that the agency ignored relevant data and that the costs to water systems nationwide will be far higher than the $1.5 billion a year EPA estimated. 

The separate suits were consolidated by the court as soon as they were filed.

These trade groups — some representing the industry and others representing drinking water suppliers — make "very unfortunate bedfellows," said Erik Olson, a lawyer with the nonprofit Natural Resources Defense Council, which has filed an interveners brief in support of the EPA.

Olson also said the argument that the EPA has no authority to regulate mixtures of chemicals is without merit, as the agency has done it before with other chemicals like trihalomethanes, which are byproducts of chlorine disinfection, and PCBs. 

And the water utility industry groups "negotiated and agreed to" those standards, Olson said. "This is by no means an unprecedented thing." 

The Long Island Water Conference, a trade group for local suppliers, has not taken a public position on the lawsuits. But spokesman James Neri emphasized that the water suppliers’ lawsuit and the polluters’ lawsuit are separate, and that the objection of the water suppliers was that the process for establishing a contaminant limit "was not followed for the benefit of everybody, both the water suppliers and the consumers, and they wanted that to be vetted," Neri said.

That argument also appears in the Chemours and industry groups' brief.

Olson dismissed the idea that the polluters and the suppliers had different positions or goals. "They are both asking for the same thing — they are asking for the court to strike down the rule."