The Environmental Protection Agency recently took a step toward enhancing protection of the country’s drinking water by issuing a preliminary determination to regulate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) in drinking water (collectively PFAS).
Several days later, the agency released its PFAS Action Plan: Program Update. In contrast to the protracted federal approach, a number of states have been setting their own standards to regulate PFAS, creating uncertainty for the regulated community and the public.
PFAS are a group of man-made chemicals resistant to heat, oil, stains, grease, and water. PFAS are ubiquitous and persistent in the environment and the human body and can travel through soil and water.
The most common uses for PFAS chemicals include repellent fabrics, carpets, nonstick cookware (i.e., Teflon), polishes, waxes, paints, cleaning products, stain and moisture resistant food packaging (i.e., burger wrappers, fry containers, pizza boxes, and paper drink cups), and industrial uses like fire-fighting foams, chrome plating, electronics manufacturing and oil recovery.
Chemicals Still Imported
Although manufacture in the U.S. is now prohibited, these chemicals are still produced internationally and continue to be imported via consumer goods such as carpet, textiles, packaging, coatings, rubber and plastics. Some larger stores are still present at firefighting training facilities, airports, military bases, and industrial plants, where suppression of hydrocarbon or petroleum based fires is a priority.
The EPA first issued a drinking water Health Advisory for PFAS in May 2016. Since then, it has been studying the sources of PFAS in drinking water in anticipation of adopting regulations that will set standards referred to as maximum contaminant levels (MCLs) to limit these chemicals in drinking water.
The mounting evidence of PFAS risk to public health and the EPA’s ongoing failure to set national MCLs prompted some states to set limits that are, in many cases, significantly stricter than EPA’s current Health Advisory level.
EPA Groundwater Recommendations
On Dec. 19, 2019, the EPA issued its Interim Recommendation for Addressing Groundwater Contaminated with PFOA and PFOS to give guidance for federal cleanup programs. The EPA recommended a groundwater screening level for PFOA and PFOS at 40 parts per trillion (ppt). The recommended Preliminary Remediation Goal for groundwater sources of drinking water is 70 ppt. This is based on EPA’s 2016 lifetime drinking water Health Advisory limit of 70 ppt for individual or combined concentrations of PFOA and PFOS.
With the Feb. 20 announcement, EPA issued a supplemental proposal to ensure that new uses of certain PFAS chemicals in surface coatings cannot be made or imported into the U.S. without prior authorization and also released an updated list for 172 PFAS chemicals subject to the Toxics Release Inventory reporting. EPA is currently conducting toxicity assessments to determine if other chemicals in the PFAS family also need to be regulated.
Industries that use chemicals in the PFAS family (or chemical analogues) should prepare action plans to eliminate or significantly reduce use of these materials. EPA’s recent announcement and the sampling of state regulations below highlight the significant challenges to impacted industries and the need for a baseline from federal regulators.
- New Jersey was the first state to set a formal MCL of 13 parts per trillion (ppt) for perfluorononanoic acid (PFNA). Water utilities across the state will begin sampling for PFNA this year, and filtration will be required anywhere it is found above 13 ppt. A pending rule proposal includes a limit of 14 ppt for PFOA and 13 ppt for PFOS and a requirement that private well owners test as part of real estate transactions and periodically for rental properties. New Jersey is also one of several states that has issued directives to companies associated with the manufacture of PFAS chemicals, seeking information and recovery of costs.
- New York’s Drinking Water Quality Council proposed adopting MCLs of 10 ppt for PFOA and PFOS in December 2018.
- New Hampshire recently set MCLs for PFNA, PFOA and PFOS at 11 ppt, 12 ppt and 15 ppt, respectively. These regulations, which went into effect in October 2019, made New Hampshire the first state to require local water systems, landfills and wastewater plants to routinely test and treat for four chemicals classified as PFAS; however, these regulations have been the subject of recent litigation, and a preliminary injunction has halted required testing.
- Michigan is moving forward with formal rule making on limits for certain PFAS compounds in drinking water, including 6 ppt for PFNA, 8 ppt for PFOA, and 16 ppt for PFOS. A final rule could be adopted by second quarter 2020.
- In Florida, bills were introduced during the 2020 legislative session that would require the State environmental agency to adopt MCLs for PFAS in drinking water by 2021 and would further require notification to any private well owners within a 1-mile radius of a reported release or discharge of PFAS.
- California’s State Water Resources Control Board (SWRCB), Division of Drinking Water, announced in February 2020 that it is reducing response levels for PFOA and PFOS in drinking water from 70 ppt to 10 ppt and 40 ppt, respectively. Notification levels are even lower at 5.1 ppt and 6.5 ppt, respectively. The SWRCB can also issue orders to targeted facilities seeking information regarding historical use of PFAS-containing products and work plans for conducting testing.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Pamela Goodwin is a partner at Saul Ewing Arnstein & Lehr where she represents clients in the energy, oil and gas, solid waste, agriculture and many other industries in matters involving environmental permitting, counseling and litigation. Drawing on more than 30 years of experience, she assists with acquisition, development and siting of pipeline landfills, power plants, solar and wind projects.
Keith Williams is an associate at Saul Ewing Arnstein & Lehr and has extensive experience working in complex trial litigation of real property, eminent domain, land use, bankruptcy, environmental, construction and tort matters in state circuit court and federal district court. Prior to joining the firm, he held the position of assistant county attorney with the Palm Beach County Board of County Commissioners and, more recently, as senior attorney with the South Florida Water Management District.
Melissa Clarke is an associate at Saul Ewing Arnstein & Lehr where she assists clients with civil litigation, especially matters involving state and federal environmental laws and CERCLA/Superfund actions, and also handles complex title and foreclosure litigation. In addition to her litigation work, she advises corporate and real estate clients on environmental compliance and land use matters.