EPA Announces PFAS ‘Action Plan,’ While Pa. and Other States Chart Their Own Courses

The Legal Intelligencer

(by Lindsay Howard and Matthew Wood)

In a press conference on Feb. 14, 2019, the U.S. Environmental Protection Agency (EPA) announced its multifaceted “action plan” outlining steps the agency is taking to protect public health and the environment from per- and polyfluoroalkyl substances (PFAS). PFAS are a group of synthetic chemicals that have been in use since around the 1940s and have numerous commercial and consumer applications. They have been used in nonstick coatings for cookware and food containers, waterproofing for fabrics and textiles, the manufacture of plastics and resins, and the formulation of firefighting foams. Their widespread use and the discovery of PFAS chemicals in various environmental media across the United States has raised interest and concerns about their potential effects on human health and the environment.

PFAS in the Environment 

PFAS chemicals have been found in, among other things, groundwater (which may be used for drinking water), surface water and sediments, as well as in wildlife and human blood. Human exposure may occur through ingestion of contaminated drinking water and consumption of animals and plants in which PFAS have bioaccumulated (or that have been exposed to PFAS in the course of preparing or cooking food for consumption). Studies have shown that exposure to PFAS chemicals may have negative health consequences, which has driven the EPA and other stakeholders to better understand the chemicals, the extent of their presence in the environment, their potential health effects and the best methods for containment and cleanup.

EPA’s Action Plan

To develop its action plan, the EPA requested comments, visited with leadership and citizens of PFAS-affected communities, and hosted a PFAS National Leadership Summit in Washington, D.C. in May 2018. The input from these events informed the action plan’s four primary approaches to addressing PFAS: identifying and understanding PFAS; addressing current contamination; preventing future contamination; and effective communication with the public. In connection with these approaches, the EPA developed priority, short-term (< 2 years), and long-term (> 2 years) actions.

One of the EPA’s priority actions is to propose a drinking water regulatory determination for PFOA and PFOS—two of the more common PFAS chemicals. This regulatory determination is the first step in determining whether to establish maximum contaminant levels (MCLs) for these chemicals under the Safe Water Drinking Act (SWDA). Although EPA Administrator Andrew Wheeler anticipates completion of this first step in 2019, promulgation of MCLs will require additional regulatory steps, and is not guaranteed. In addition to its currently available enforcement mechanisms, the EPA is also in the process of defining PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) in order to increase the agency’s investigation, cleanup and cost recovery authority with respect to the chemicals.

Many of the EPA’s priority, short-, and long-term actions focus on collecting and disseminating information and data toward specific goals. For example, the EPA would like to better understand toxicity and health impacts of PFAS chemicals on humans, develop new analytical methods for detecting PFAS chemicals in drinking water and other environmental media (e.g., soil, sediment and air), identify additional sources of PFAS in the environment, and improve current and advance new investigative and remedial guidance. The EPA has committed to communicate its findings on these issues to the public.

State Responses

Even if the EPA accomplishes its goals in accordance with the general schedule set forth in the action plan, many of the agency’s actions will take years to implement. Moreover, despite the EPA’s recent actions, many states have long believed that the EPA has been moving too slowly to address their concerns about PFAS chemicals and have already implemented their own PFAS-related agendas. For example, earlier this month, the New Jersey Department of Environmental Protection (NJDEP) established interim specific groundwater quality standards (ISGWQS) for PFOA and PFOS at 10 parts per trillion (ppt), which is substantially lower than the EPA’s current Health Advisory Limit (HAL) of 70 ppt combined. Other states are similarly taking aggressive regulatory action to address PFAS in the environment.

Pennsylvania PFAS Action Team 

Pennsylvania has also moved to address PFAS contamination at the state level. In September 2018, Gov. Tom Wolf issued an executive order establishing a PFAS action team made up of leaders from multiple commonwealth agencies. Among other things, Wolf tasked the action team with identifying impacted sites and protecting drinking water, developing response protocols, gathering and sharing information and exploring funding for remediation efforts. As of this writing, almost 20 sites across the commonwealth are being investigated for PFAS contamination. In a contemporaneous letter to Wheeler, Wolf also urged the EPA to expeditiously set protective MCLs for PFOA and PFOS and “expand its analytical and regulatory focus beyond drinking water to encompass PFAS reductions across all media.”

PADEP subsequently held a public meeting in November 2018, to educate residents about PFAS, featuring presentations by PFAS experts and opportunities for public comment (a follow-up meeting is planned, but as yet unscheduled). In an apparent response to the EPA’s action plan—which some critics claimed indicated the EPA’s lack of commitment to establishing MCLs for PFOA and PFOS—PADEP appears to be gathering resources to begin the process of establishing its own MCL, a first for the commonwealth.

Impacts to Site Remediation Programs

Cleaning up historic contamination at old industrial properties can be an expensive and time-consuming process. With the increased attention now being given to new and emerging contaminants like PFAS, the site remediation process will no doubt become even more complicated. For example, for sites that are currently being evaluated for cleanup, the lead agency may add PFAS to the list of chemicals that need to be investigated, even if the investigation is already well on its way. Moreover, for sites that have previously been investigated and cleaned up, the lead agency could compel further investigation of PFAS chemicals. Another concern is that agencies may compel action before adequate tools to evaluate, treat, and clean up PFAS are developed. Alternatively, agencies may delay providing parties with regulatory closure at remediation sites as they attempt to come up to speed on the science and incorporate it into their regulatory schemes. All of these scenarios could be costly and time consuming for parties involved in investigations and cleanups.

Litigation

Aside from regulatory concerns, many companies may face threats of lawsuits by parties allegedly injured by PFAS. In one recent complaint filed in February 2019, (Ridgewood Water v. The 3M Company, BER-L-001447-19, N.J. Super. Ct. Law Div.), Ridgewood Water (a public drinking water provider), alleged that 3M and multiple other defendants (including 50 Doe defendants) involved in the manufacture and use of PFAS chemicals contaminated Ridgewood’s wells. The plaintiff alleged the contamination forced it to take some wells out of service and incur costs to develop treatment plans for others. Ridgewood brought causes of action for strict products liability for defective design; 2strict products liability for failure to warn; negligence; and trespass; and is seeking investigation and cleanup costs, compensatory damages for past and future injuries, punitive damages, and attorney fees and costs.  We expect to see similar complaints filed in the future.

Conclusion 

The regulatory developments concerning PFAS chemicals discussed here are already having significant impacts on stakeholders. Despite the recent release of the EPA’s action plan, it remains to be seen whether and how quickly the agency takes action toward further regulating PFAS chemicals. In the meantime, it is clear that Pennsylvania and other states will proceed with their own action plans, leaving the regulated community with a patchwork of potentially inconsistent and confusing requirements and standards across the country.

Babst Calland Clements & Zomnir will continue to track the EPA’s and the states’ dynamic plans to identify, regulate and respond to PFAS in our communities.

Lindsay P. Howard is a shareholder in the environmental services group of Babst Calland Clements & Zomnir. His practice focuses on issues related to complex site remediation, solid and hazardous waste, natural resource damages, and occupational safety and health for a broad array of clients. Contact him at 412-394-5444 or lhoward@babstcalland.com.

Matthew C. Wood is an associate in the firm’s environmental group. His practice encompasses a variety of environmentally related legal matters arising under major federal and state environmental and regulatory programs, with a focus on issues involving government inquiries, environmental investigations, remediation and related activities. Contact him at 412-394-6589 or mwood@babstcalland.com.

For the full article, click here.