Environmental Alert
(by Lindsay P. Howard, Alana E. Fortna and Matthew C. Wood)
On February 14, 2019, the U.S. Environmental Protection Agency (EPA) released its Action Plan for regulating and addressing risks concerning per- and polyfluoroalkyl substances (PFAS), comprising a group of synthetic chemicals with widespread consumer, commercial, and industrial applications. PFAS refers to a large collection of man-made chemicals that includes PFOA and PFOS (both specifically targeted in the Action Plan), as well as PFBS, perfluorononanoic acid (PFNA), and others referred to as GenX chemicals, and thousands of other compounds. Although there have been only limited widespread studies, evidence suggests that exposure to some PFAS chemicals can lead to adverse health effects. PFAS have been widely-used since as early as the 1940s, but public and governmental interest has grown, especially in the last decade, as concerns regarding the potential effects of exposure to PFAS have increased.
Although the Action Plan generally tends to focus on drinking water, EPA notes that exposure may occur through, among other things, consumption of plants and meat in which PFAS have bioaccumulated, consumption of food exposed to PFAS, exposure to commercial and consumer products such as non-stick cookware, stain-resistant carpet and clothing, and pizza boxes. According to EPA, the ubiquitous nature of PFAS means that most people have been exposed to PFAS chemicals. In the environment, PFAS have been found in dozens of states, as well as on military bases and tribal land.
EPA developed the Action Plan in response to more than 120,000 comments in the public docket and feedback from federal, state, and local stakeholders who attended the Agency’s two-day National Leadership Summit on PFAS in Washington, D.C. EPA also gathered input by visiting and engaging with members of PFAS-affected communities in several states. In a press conference to announce the Action Plan, EPA Acting Administrator Andrew Wheeler said, “The PFAS Action Plan is the most comprehensive cross-agency plan to address an emerging chemical of concern ever undertaken by EPA.” With that said, several states and other stakeholders believe that EPA’s efforts are too slow and are therefore moving ahead with their own regulatory and other responses to PFAS.
Painted in broad strokes, the Action Plan focuses on: (1) developing a better understanding of PFAS; (2) addressing current PFAS contamination; (3) preventing future PFAS contamination; (4) and keeping the public informed about PFAS. To accomplish these objectives, the Agency has set priority goals, short-term goals (those that can be accomplished in less than two years), and long-term goals (those that will take longer than two years to accomplish).
One of EPA’s immediate priorities is to evaluate whether maximum contaminant levels (MCLs) for two of the more common PFAS – PFOA and PFOS – should be established under the Safe Drinking Water Act (SDWA). While acknowledging that the regulatory process for establishing MCLs can be lengthy and uncertain, Administrator Wheeler anticipated that the first step in the process could be completed by the end of 2019. It should be noted that this first step is only a threshold determination under the SDWA and will not necessarily result in the establishment of enforceable MCLs in the future.
The Agency is also evaluating methods for classifying PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. Doing so would allow EPA and other federal agencies to hold responsible parties accountable and more fully utilize cleanup and cost recovery authority under CERCLA. With that said, EPA is already using available enforcement tools to address PFAS as circumstances dictate.
Another EPA goal is to develop interim cleanup recommendations for groundwater contaminated with PFOA and PFOS that will provide guidance at sites being investigated and/or cleaned up under CERCLA or the Resource Conservation and Recovery Act, while also serving as helpful guidance for other agencies, states, tribes, and other entities. At this time, EPA routinely uses a Health Advisory Level (HAL) of 70 parts per trillion (ppt) as a target cleanup level for PFAS.
Longer term, EPA plans on gathering and/or relying on data and information to determine whether regulation of PFAS is appropriate under various other regulatory schemes, including listing PFAS to the Toxics Release Inventory or developing ambient water quality criteria for human health under Clean Water Act Section 304(a). For curating and sharing data, EPA proposes creating data standards best practices for PFAS monitoring data and researching, identifying, and understanding other ecological impacts of PFAS in the environment.
As noted above, in the wake of perceived inaction by EPA, several states have pushed forward with their own response to PFAS compounds. For example, New Jersey is currently developing the nation’s first MCLs and groundwater quality standards for PFOA and PFOS, at proposed levels that are far more stringent than EPA’s current HAL of 70 ppt (proposed at 14 ppt and 13 ppt, respectively). Similarly, Pennsylvania recently established its PFAS Action Team, a multidisciplinary group that is charged with comprehensively evaluating and addressing the perceived risks presented by PFAS compounds. Several Pennsylvania sites have already been targeted by the Team for additional investigation and potential response. Many other states are initiating their own studies and regulatory response to this growing problem as well. As a result, it is likely that the regulatory community will be facing inconsistent approaches to PFAS across the country even as EPA initiates its Action Plan.
These recent regulatory developments with respect to PFAS and other emerging contaminants (e.g., 1,4 dioxane) are having profound impacts on a number of fronts. For example, many sites that may have already been fully investigated and/or remediated may be subject to new requirements, including further evaluation/characterization of PFAS compounds. At most of these sites, PFAS were not even considered when prior work scopes or remedial alternatives were initially established. As a result, many of our clients have found that some evaluation of PFAS will be required before final regulatory closure is permitted. Routine environmental due diligence in commercial transactions (i.e., ASTM Phase 1 studies) will similarly be complicated by these newly identified compounds and the relative lack of information relating to them.
Despite the bold pronouncements in EPA’s Action Plan, the steps EPA identifies are merely the first of many that will be required to address PFAS across the country. Nonetheless, by the end of 2019, stakeholders should have at least some idea as to the progress EPA is making in implementing its Plan. What is clear, however, is that the states will not be waiting around to see if EPA actually takes the steps it has identified in its Action Plan.
Babst Calland will continue to track EPA’s and the states’ dynamic plans to identify, regulate and respond to PFAS in our communities. If you have any questions regarding the EPA’s Action Plan, specific state responses, or other environmental laws pertaining to PFAS, please contact Lindsay P. Howard at (412) 394-5444 or lhoward@babstcalland.com, Alana E. Fortna at (412) 773-8702 or afortna@babstcalland.com, or Matthew C. Wood at (412) 394-6589 or mwood@babstcalland.com.
