Bloomberg Law
May 6, 2019, 10:01 AM

INSIGHT: EPA Groundwater Cleanup Guidance Not Protective

Betsy Southerland
Betsy Southerland

On April 25, 2019, the U.S. Environmental Protection Agency released a highly anticipated guidance intended to tell the American public under what conditions private companies and the federal government would be responsible for cleaning up groundwater at hundreds of sites throughout the country contaminated with the toxic chemicals perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).

These chemicals, part of a class of per- and polyfluorinated (PFAS) substances, are found in many consumer products such as cookware and food packaging and in firefighting foams that are heavily used at military bases and rocket launch sites. They persist for years in the environment and in the human body and have the potential to cause serious health effects. Recent monitoring has found drinking water contaminated by industrial discharges of these chemicals at several sites and by leaching of firefighting foam into the groundwater at over 400 military bases.

The Trump administration’s Draft Interim Recommendations to Address Groundwater Contaminated with PFOA and PFOS would give the EPA, the Department of Defense (DOD), and the National Aeronautics and Space Administration (NASA) as many loopholes as possible to avoid cleaning up sites where they have the responsibility to take action. I base this opinion on my knowledge of Superfund cleanup requirements and on four key events.

The first is the seven-month delay in releasing this guidance, which then-EPA Administrator Scott Pruitt promised would be public in the fall of 2018. EPA determined in 2016 that the safe concentration of PFOA and PFOS in drinking water was 70 parts per trillion (ppt). The groundwater guidance was expected to set that as the cleanup goal. In addition, the guidance was expected to set a lower screening level concentration that would trigger investigation and a higher emergency level that would trigger immediate EPA action.

The second event is press reports that allege the delay was due to efforts to weaken the guidance by DOD, NASA, and the Small Business Advocacy Office. Congress investigated the delay with hearings and requests for explanations from all the involved agencies but never received any clear answers other than denials by top Pentagon officials that they tried to weaken the cleanup standards.

DOD Letter

The third event is an April 10, 2019 letter from acting Defense Secretary Peter Shanahan to Sen. Jeanne Shaheen (D-N.H.) stating that a much higher cleanup goal than 70 ppt was consistent with the Superfund risk assessment process and would be used by DOD.

The final event was the posting of an edited version of the guidance showing changes that had weakened EPA’s original draft.

The changes prevent the public from knowing if federal agencies will protect them from groundwater contaminated with PFOA and PFOS. Statements were deleted that had clarified that federal agencies are responsible for cleaning up groundwater and other contamination at their facilities, and that the EPA and federal agencies can respond to the release of a pollutant even when it is not designated as a hazardous substance if it presents an imminent and substantial danger to public health and welfare.

While the screening level of 40 ppt and the preliminary cleanup level of 70 ppt were retained, a statement was added that the preliminary cleanup level is often modified based on site-specific factors.

Deleted Sections

An entire section was removed that designated EPA’s authority to take emergency action to address contamination where no viable private, federal, or state potentially responsible party exists. Included in that deleted section was the establishment of 400 ppt as the concentration of PFOA and PFOS in groundwater that would trigger EPA’s emergency action and the statement that once EPA undertakes such an action, the final cleanup level will be attained to the extent practicable.

Also deleted was an explanation that when groundwater levels of PFOA and PFOS are between the drinking water safe concentration of 70 ppt and the emergency level of 400 ppt, EPA will work with states, tribes, and local government to address that contamination using their authorities. Instead of this detailed information on how EPA will approach cleanup, the new guidance simply states that EPA regional offices should consult with EPA headquarters before taking any emergency or enforcement actions.

So why has the Trump administration made these dramatic changes to EPA’s original draft of the guidance? I believe these changes were made to give cover to DOD and NASA to use the now deleted emergency action concentration as their cleanup level.

The optics would be terrible for those agencies to refuse to clean up unless an established emergency level was exceeded.

Shanahan maintains in his April 10 letter to Shaheen that “using the EPA risk assessment process, the unacceptable risk to human health for cleanup of groundwater with PFOS and PFOA is approximately 380 ppt.” This is the value that EPA rounded to 400 ppt as an emergency action level in the original guidance.

Shanahan further states that EPA’s drinking water value of 70 ppt is not a cleanup level because it considers all PFOA/PFOS exposures over a lifetime.

I disagree with his argument that the Superfund risk assessment process is appropriate for deriving the groundwater cleanup level for these chemicals instead of the drinking water risk assessment process. The Superfund process only evaluates the risks from pollutants released in a spill or a discharge and does not factor in the background level of those pollutants. The Superfund process derives 380 ppt PFOA/PFOS as a safe level by assuming these chemicals are only in the drinking water at a site.

PFOA and PFOS cannot be properly assessed with this assumption because 98 percent of the U.S. population has measurable levels in their blood from exposure to consumer products. EPA’s drinking water process takes that nationwide background exposure into account and lowers the allowable level of PFOA/PFOS in drinking water from 380 ppt to 70 ppt so the consumer’s total exposure will not exceed a safe level.

The draft groundwater cleanup guidance is out for a brief 45 day public comment. DOD and NASA should clean up the groundwater they have contaminated with PFOA/PFOS to the 70 ppt level or to any state drinking water standard, and EPA needs to commit to emergency action when groundwater exceeds 380 ppt PFOA/PFOS, and there is no viable responsible party.

This column does not necessarily reflect the opinion of The Bureau of National Affairs Inc. or its owners. Bloomberg Environment has invited DOD to respond to this article.

Author Information

Betsy Southerland has a PhD in Environmental Science & Engineering from Virginia Tech. She worked in both the water and Superfund programs during her 33 years at EPA, where she oversaw development of the agency’s drinking water health advisories for PFOA and PFOS before retiring in August 2017.