Tag: PFAS

President Biden’s FY 2023 Budget Request Would Strengthen TSCA and Tackle PFAS Pollution

On March 28, 2022, the Biden Administration submitted to Congress President Biden’s budget for fiscal year (FY) 2023. According to the U.S. Environmental Protection Agency’s (EPA) March 28, 2022, press release, the budget makes critical investments, including:

  • Strengthening EPA’s Commitment and Ability to Implement Toxic Substances Control Act (TSCA) Successfully: The budget provides $124 million and 449 full time equivalents (FTE) for TSCA efforts “to deliver on the promises made to the American people by the bipartisan Lautenberg Act.” According to the budget, “[t]hese resources will support EPA-initiated chemical risk evaluations and protective regulations in accordance with statutory timelines.”
  • Tackling Per- and Polyfluoroalkyl Substances (PFAS) Pollution: PFAS are a group of man-made chemicals that threaten the health and safety of communities across the United States. As part of the President’s commitment to tackling PFAS pollution, the budget provides approximately $126 million in FY 2023 for EPA to increase its understanding of human health and ecological effects of PFAS, restrict uses to prevent PFAS from entering the air, land, and water, and remediate PFAS that have been released into the environment. EPA states that it will continue to act on its PFAS Strategic Roadmap to safeguard communities from PFAS contamination.

Article By Lynn L. Bergeson and Carla N. Hutton of Bergeson & Campbell, P.C.

For more environmental legal news, click here to visit the National Law Review.

©2022 Bergeson & Campbell, P.C.

PFAS Air Regulations Proposed By House

In the latest federal legislative move to try to force the EPA to take quicker action than contemplated by the agency’s PFAS Roadmap of 2021, a bill was recently introduced in the House that would require the EPA to set air emission limits for all PFAS under the Clean Air Act. PFAS air regulations are something that advocates concerned about PFAS pollution issues beyond just drinking water have advocated for in the past few years. There are barriers, though, to achieving the desired results even if the legislation passes. Nevertheless, the federal legislative activity underscores the need for all companies that are currently using PFAS in their manufacturing or industrial processes to understand the full scope of compliance needs when and if PFAS air regulations become a reality.

House Bill For PFAS Air Regulations

On March 17, 2022, a bipartisan group in the House introduced the “Prevent Release Of Toxics Emissions, Contamination, and Transfer Act of 2022” (also known as the PROTECT Act of 2022 or HR 7142). The aim of the bill is to require the EPA to list all PFAS as hazardous air pollutants (HAPs) under the Clean Air Act. If passed, the designation as HAPs would require the EPA to develop regulatory limits for the emission of PFAS into the air.

The proposed steps, however, go well beyond the EPA’s own plan for potential PFAS air regulations as detailed in the EPA’s PFAS Strategic Roadmap 2021. In the PFAS Roadmap, the EPA indicates that it commits to performing ongoing investigation to:

  • Identify sources of PFAS air emissions;
  • Develop and finalize monitoring approaches for measuring stack emissions and ambient concentrations of PFAS;
  • Develop information on cost-effective mitigation technologies; and
  • Increase understanding of the fate and transport of PFAS air emissions to assess their potential for impacting human health via contaminated groundwater and other media pathways.

The EPA committed to using this information and data in order to, by the Fall of 2022, “evaluate mitigation options”, which could include listing “certain PFAS” as HAPs. However, the EPA also indicated that it might use other regulatory or non-regulatory tools to achieve results similar to formal PFAS air regulations under the Clean Air Act.

The bill, therefore, would considerably accelerate the EPA’s process for potential HAPs, which in turn could result in legal challenges to any rushed HAPs, as the EPA would not have had the opportunity to collect all necessary data and evaluate the soundness of the science behind any HAP designation.

Impact On Business

Any designation of PFAS as HAPs under the Clean Air Act will of course immediately impact companies that are utilizing PFAS and emitting PFAS into the air. While it remains to be seen whether the PROTECT Act will pass, if it were to pass and the EPA’s HAP designations were to survive any legal challenges, the impacts on businesses would be significant. Companies would need to undertake extensive testing of air emissions to determine their risk of Clean Air Act violations, which will be complicated due to limitations on current technology to do this type of testing. Companies may also need to pivot their production practices to reduce or limit PFAS air emissions, which would add unplanned costs to balance sheets. Finally, companies may wish to explore substitutes for PFAS rather than navigate Clean Air Act regulatory compliance, which is a significant undertaking that takes time and money.

It is also worth noting that a designation as a HAP for any PFAS would also trigger significant regulatory challenges to businesses that might have nothing to do with air emissions. Any substance listed as a HAP under the Clean Air Act is automatically designated as a “hazardous substance” under CERCLA (the Superfund law). Once a substance is classified as a “hazardous substance” under CERCLA, the EPA can force parties that it deems to be polluters to either cleanup the polluted site or reimburse the EPA for the full remediation of the contaminated site. Without a PFAS Superfund designation, the EPA can merely attribute blame to parties that it feels contributed to the pollution, but it has no authority to force the parties to remediate or pay costs. The designation also triggers considerable reporting requirements for companies. Currently, those reporting requirements with respect to PFAS do not exist, but they would apply to industries well beyond just PFAS manufacturers. Superfund site cleanup costs can be extensive, even as high as hundreds of millions of dollars, depending on the scope of pollution at issue and the amount of territory involved in the site.

Article By John Gardella of CMBG3 Law

For more environmental legal news, click here to visit the National Law Review.

©2022 CMBG3 Law, LLC. All rights reserved.

Eliminating Use of PFAS at Airports May Be Harder Than Congress Thought

Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are subject to increasing environmental regulation and legislation, including legislation to outright ban their use in certain products. Congress directed the Federal Aviation Administration (FAA) to stop requiring PFAS in the foams used to fight certain fires at commercial airports, and to do so by Oct. 4, 2021. In complying with this order, FAA shows the difficult tightrope it has to walk to meet the “intent” of Congress’ directive, while not really meeting the goal Congress had hoped for.

The FAA issued Certification Alert (CertAlert) 21-05, “Part 139 Extinguishing Agent Requirements,” addressing the continued use of aqueous film-forming foam (AFFF) in order to meet the Oct. 4 deadline. In Section 332 of the FAA Reauthorization Act of 2018, Congress directed that after this date, FAA “…shall not require the use of fluorinated chemicals to meet the performance standards referenced in chapter 6 of AC No: 150/5210–6D and acceptable under 139.319(l) of title 14, Code of Federal Regulations.”

The CertAlert directs airports to continue using AFFF with PFAS unless they can demonstrate another means of compliance with the performance standards stablished by the Department of Defense (DoD) for extinguishing fires at commercial airports. The FAA alert also reminds airports about the need to test their firefighting equipment. Airports can perform the required testing by using a device that has been available since 2019 which does not require the discharge of any foam. Finally, the FAA also reminded airports to comply with state and local requirements for management of foam after it has been discharged.

The FAA reported in its communication that it began constructing a research facility in 2014 that was completed in 2019 and that it has been collaborating with DoD in the search for fluorine-free alternatives for AFFF. The FAA reported that it has tested 15 fluorine-free foams and found that none of them meet the strict DoD performance specifications that also are imposed on commercial airports. More specifically, FAA said the tested alternative foams had the following failings:

  • Increased time to extinguish fires
  • Not as effective at preventing a fire from reigniting
  • Not compatible with the existing firefighting equipment at airports

AFFF was developed to fight fuel fires on aircraft carriers where the ability to suppress fires as rapidly as possible and keep them suppressed is vital to the health and safety of pilots, crews, firefighters and the ship. The military specification (commonly known as MilSpec) for effective firefighting foams for fuel fires is in place for both military and civilian airports.  For many years, the consequences of the use of AFFF to fight aircraft fuel fires – most specifically, the adverse impact on groundwater and surface water – was not fully appreciated. Only recently has this threat been understood and only even more recently has the management of firefighting debris been directly addressed.

Congress may have thought it was eliminating a threat with the legislation directing the FAA to no longer require airports to use AFFF. But FAA’s latest messaging on AFFF highlights just how difficult it is to find suitable replacements, especially when they also have to meet the DoD’s stringent performance standards. The FAA did invite any airport, if they identify a replacement foam that meets the performance standards, to share that discovery with the FAA. However, it is unclear what that would accomplish when it is the DoD and not the FAA that certifies a particular foam’s performance.

In essence, FAA could not solve the challenge that Congress gave it (approve a fluorine-free foam) and instead used the CertAlert to approve airports to use such foams if they can find them on their own. The bottom line is that inadequate progress has been made to fulfill congressional intent to stop using AFFF at commercial airports, and airports are left with no choice but to use PFAS containing foams.

There is legislative activity in many states to ban products with PFAS and at the federal level there have been legislative actions targeting the same – like removing them from MREs. The FAA’s removal of its mandate to use AFFF without offering a PFAS-free alternative is a particularly visible example of the challenge in transitioning away from reliance on PFAS chemicals.

© 2021 BARNES & THORNBURG LLP
For more on travel and transportation, visit the NLR Public Services, Infrastructure, Transportation section.

PFAS Water Cleanup…Have You Bought Yourself a Multi-Million Dollar Superfund Issue?

The last two years have seen an incredible uptick in activity with respect to PFAS regulations, and media coverage of PFAS continues to fuel the fires from the public, non-government organizations and environmental groups for additional action to be taken. The EPA continues its process of determining Maximum Contaminant Levels for PFAS. The FDA is examining the ways that it might regulate PFAS levels in both food and food packaging. Meanwhile, states, bombarded with constituent outcries and under pressure to take action to fill the gap until the EPA and FDA finish their regulatory review processes, quickly enact drinking water limits for PFAS and ban PFAS-containing products, such as children’s toys and food packaging.

As states continue setting drinking water limits for PFAS and in preparation for the EPA’s final determination of a Maximum Contaminant Level for PFAS in drinking water, many water utilities are beginning to evaluate the steps needed to come into compliance with existing or anticipated water regulations. Comprehensive compliance programs are being created and costly well testing sites are being built to determine PFAS content at various points along the waterways for drinking water sources. At water treatment facilities, expensive water filtration systems are being installed to remove as many PFAS as possible from drinking water sources. With water utilities coming under fire in the litigation world for PFAS issues, these steps may curtail the short-term issues and costs associated with PFAS litigation.

However, the long-term impact of the remediation steps that water treatment facilities ae taking may only be pushing litigation costs further down the road, not eliminating them. In addition, little considered Superfund laws may be triggered through PFAS water filtration that could end up costing water treatment facilities tens or hundreds of millions of dollars in cleanup costs.

CERCLA and PFAS

Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), once a substance is designated as “hazardous” by the EPA, the Act gives the EPA considerable power to designate sites containing such substances as Superfund sites and force parties responsible for the pollution to pay for the cleanup of the site. Without a designation of a substance as “hazardous” (and therefore a site as a Superfund site), the EPA may either pay for the cleanup of the site itself or attempt to pursue, through time-consuming and costly litigation, the property owner for the costs of cleanup.

One of the most closely watched developments in the PFAS world is whether the EPA will make the determination that PFAS are “hazardous” under CERCLA. Although the EPA has promised its determination soon and various lawmakers are pressuring the EPA to make a determination in the near future, it is still uncertain as to when the EPA will issue its final regulations.

In the meantime, however, water utilities are under increasing pressure to filter out PFAS from drinking water. These PFAS are typically deposited in landfills. Out of sight, out of mind? Not exactly, when it comes to PFAS. As the quantity of PFAS accumulate in landfills, if the EPA makes a determination that PFAS are “hazardous” substances under CERCLA, the EPA could immediately designate landfills full of PFAS as Superfund sites and take action to pursue parties to pay for the cleanup. Water utilities could therefore be at significant risk of having to pay for Superfund site cleanup.

Further, in some instances, water utilities may have previously been involved with Superfund site cleanup for other reasons and believed the site issues to be fully remediated.  However, since PFAS have not yet been classified as “hazardous”, Superfund sites were never tested for PFAS. Should the EPA determined that PFAS are “hazardous” under CERCLA, the EPA will have the right to reopen previously closed Superfund sites for further testing and remediation specific to PFAS, even if parties deemed responsible for the pollution already paid millions of dollars to clean up the site for other contaminants.

Water utilities in particular must pay special attention to PFAS developments under CERCLA. Proactive planning is needed to determine alternate means of disposing of or eliminating PFAS from water sources. Failure to enact forward-thinking strategies may very well end up costing water utility companies tens of millions in unexpected and unwanted costs if they fail to do so.

©2020 CMBG3 Law, LLC. All rights reserved.

ARTICLE BY John Gardella at CMBG3 Law.

Congress Tackles PFAS on Multiple Fronts

With the enactment of the PFAS Act of 2019 and related provisions in December, opposing forces in Congress came together to force regulatory action on several different aspects of per- and poly-fluorinated substances (PFAS). Issues on which agreement was not reached are now before the Senate in House-passed legislation. While the PFAS debate continues in Congress, federal agencies are now tasked with multiple obligations related to PFAS. Companies that handle PFAS will have added PFAS reporting obligations under both the Toxics Release Inventory and the Toxic Substances Control Act.

The PFAS Act of 2019 is title LXXIII of the massive National Defense Authorization Act for Fiscal Year 2020 (NDAA), Public Law 116-92 (Dec. 20, 2019). This alert summarizes its six subtitles, as well as other PFAS provisions in the NDAA related to the Department of Defense (DOD). It then provides a preview of future legislative developments.

PFAS Act of 2019 Provisions

Subtitle A – Drinking Water Monitoring

EPA must include certain PFAS and classes of PFAS in the fifth Unregulated Contaminants Monitoring Rule (UCMR 5), expected later this year. EPA’s PFAS Action Plan (Feb. 2019) had called for EPA to take this action, but Subtitle A requires it to do so. EPA had included six PFAS in UCMR 3.

The PFAS to be included are all PFAS and classes of PFAS for which EPA has a validated test method for drinking water and that are not subject to a national primary drinking water standard under the Safe Drinking Water Act (SDWA). EPA has a validated test method for 18 PFAS, which it adopted in 2009 and expanded in 2018, EPA Method 537.1. The PFAS Action Plan had predicted additional test methods in 2019, but this did not occur.

The SDWA limits the number of unregulated contaminants that may be included in each UCMR to 30, but the NDAA excludes the listed PFAS from that limit.

Subtitle A also provides grant eligibility through the Drinking Water State Revolving Funds to address PFAS.

Subtitle B – Toxics Release Inventory

EPA’s PFAS Action Plan had set as a long-term action exploring data availability for listing some PFAS as toxic chemicals for purposes of the Toxics Release Inventory (TRI) under section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). EPA had begun that lengthy process with an advance notice of proposed rulemaking, published on December 4, 2019.

The NDAA disrupted this process later that month. By its terms, Subtitle B automatically added multiple PFAS to the TRI list as of January 1, 2020, and others will be automatically added as certain milestones are reached. EPA posted a list of 160 PFAS that were added as of January 1, 2020. The reporting threshold for all of the chemicals is set at 100 pounds unless revised by EPA within the next 5 years. Reporting on these 160 PFAS will be due by July 1, 2021.

Future automatic additions to the TRI list (as of January 1 of the following year) are mandated whenever:

  • EPA finalizes a toxicity value for a PFAS. (EPA has a provisional peer-reviewed toxicity value for PFBS, adopted in 2014.) Toxicity values are used in risk assessments under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
  • EPA finalizes a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) for a PFAS or class of PFAS.
  • EPA adds a PFAS or class of PFAS to an existing SNUR.
  • EPA designates a PFAS or class of PFAS as active on the TSCA Inventory.

In addition, over the next two years, EPA must determine whether certain listed PFAS meet any of the listing criteria in section 313. If so, EPA must add them to the TRI list within two years of making that determination.

These additions to the TRI list are subject to the provision that, if any PFAS chemical identity is claimed confidential, the PFAS is not added to the list until EPA reviews a substantiation of that claim. If EPA upholds the claim, that PFAS must be added to the list in a manner that does not disclose its identity (such as through a generic name).

Subtitle C – USGS Performance Standard and Sampling

Subtitle C directs the United States Geological Survey (USGS) to coordinate with EPA to develop an appropriate testing methodology for PFAS that is “as sensitive as is feasible and practicable,” with the ability to detect as many “highly fluorinated compounds” as possible. Highly fluorinated compounds are defined to mean PFAS with at least one fully fluorinated carbon atom. USGS must also develop quality assurance and quality control measures to ensure accurate sampling and testing, as well as a training program.

In addition, USGS must carry out nationwide sampling for PFAS. The nationwide sampling program must start with drinking water near locations with known or suspected sources of PFAS. Later stages of sampling will be based on an evaluation by USGS in consultation with the states and EPA to determine where sampling should occur, with an emphasis on direct human exposure through drinking water. The results of the sampling must be sent to EPA and, upon request, the states. In addition, USGS must prepare a report and submit it to certain committees and members of Congress.

EPA’s PFAS Action Plan called for EPA to collaborate with USGS, the Army Corps of Engineers, and universities to lead the science of PFAS.

Subtitle D – Emerging Contaminants

Subtitle D encourages research into “emerging contaminants,” defined broadly to include any physical, chemical, biological, or radiological substance or matter in water for which there is no national primary drinking water standard and that may have an adverse impact on the health of individuals. It mandates several actions to improve the level of technical understanding as well as support for states.

First, EPA, in collaboration with states and other stakeholders, must establish a strategic plan for improving existing federal efforts to identify, monitor, and assist in the development of treatment systems for emerging contaminants and to assist states in responding to human health risks posed by such contaminants.

Second, Subtitle D requires the establishment of a Working Group within 180 days of enactment to coordinate federal activities identifying and analyzing public health effects of emerging contaminants in drinking water. The Working Group will be comprised of representatives from several federal entities, including EPA, the National Institutes of Health, the Centers for Disease Control and Prevention, the Agency for Toxic Substances and Disease Registry, USGS, and others in the discretion of EPA.

Third, it requires the Director of the Office of Science and Technology Policy to establish the National Emerging Contaminant Research Initiative within 180 days of enactment. The goal will be improving the identification, analysis, monitoring, and treatment methods for emerging contaminants, including identifying priority emerging contaminants for research emphasis. Within one year after establishing the research initiative, involved agencies must issue solicitations for grant proposals for research projects consistent with that strategy.

Finally, Subtitle D requires EPA to study the actions it can take to increase technical assistance and support to states with respect to drinking water in emerging contaminants and issue a report to Congress within 18 months. Based on the findings in that report, EPA must develop a program to provide technical assistance to states within three years of enactment. When evaluating applications submitted by states seeking assistance, EPA must give priority to states with affected areas, primarily in financially distressed communities. Emergency assistance may be provided without application. EPA must also establish and maintain a database of available resources developed to assist states with testing for emerging contaminants and make it available to states and stakeholder groups with a scientific or material interest, such as drinking water utilities. The database must be searchable and available through the EPA website.

Subtitle E – TSCA Provisions

Subtitle E requires EPA to take two actions regarding TSCA – finalize amendments to two SNURs for certain PFAS substances by June 22, 2020, and issue a final rule by January 1, 2023, requiring manufacturers of PFAS to report detailed information about their PFAS.

The two PFAS SNURs and the effect of Subtitle E on EPA’s timetable for finalizing them are discussed in another Beveridge & Diamond alert, available here.

Subtitle E also amends TSCA § 8(a) so as to direct EPA to issue a final rule that would require each person who has manufactured a PFAS in any year since 2011 to submit a report that includes, for each year since 2011, detailed information on that PFAS. EPA must issue the rule by January 1, 2023.

The information that a PFAS manufacturer must provide includes, for each such PFAS:

  • Its common or trade name, chemical identity, and molecular structure.
  • Its categories or proposed categories of use.
  • The total amount manufactured or processed, reasonable estimates of the total amount to be manufactured or processed, the amount manufactured or processed for each of its categories of use, and reasonable estimates of the amount to be manufactured or processed for each of its categories of use or proposed categories of use.
  • A description of the byproducts resulting from its manufacture, processing, use, or disposal.
  • All existing information concerning its environmental and health effects.
  • The number of individuals exposed to it, and reasonable estimates of the number who will be exposed to it in their places of employment and the duration of such exposure.
  • The manner or method of its disposal.

Subtitle F – Guidance on Disposal; Research

EPA must publish interim guidance on the destruction and disposal of PFAS within one year of enactment. The guidance must address aqueous film-forming foam (AFFF), soil and biosolids, textiles (other than consumer goods) treated with PFAS, spent water treatment equipment, landfill leachate containing PFAS, and waste streams from facilities manufacturing or using PFAS. EPA must publish revisions at least every three years.

EPA’s Office of Research and Development must examine the effects of PFAS on human health and the environment and make that information public It must also develop a process for prioritizing PFAS and classes of PFAS for additional research. A total of $15 million per year for each of the next five years is authorized for appropriation for this research.

DOD-Related PFAS Provisions of the NDAA

The National Defense Authorization Act includes several PFAS provisions in Title III, related to DOD operations and maintenance at military bases. AFFF containing PFAS, used for putting out fires, is the subject of several provisions. These include prohibiting the uncontrolled release of AFFF containing PFAS, with limited exceptions for emergency response as well as incineration requirements for the disposal of AFFF that must meet the Resource Conservation and Recovery Act (RCRA). The use of PFAS AFFF must be phased out by October 1, 2024, and the use of PFAS in packaging for meals ready-to-eat (MREs) must end by October 1, 2021. There are also provisions for information sharing with municipal drinking water utilities located adjacent to military installations.

Additional PFAS Legislation

During the conference to reconcile the House and Senate versions of the NDAA, the House managers pushed for additional PFAS provisions, but the two sides did not reach agreement on those provisions. On January 10, 2020, the House passed a revised H.R. 535, the PFAS Action Act of 2019, with the votes of 24 Republicans, and sent it to the Senate for its consideration. Senate passage is probably unlikely, particularly in light of the rejection by Senate conferees on the NDAA of some of these provisions.

As revised, H.R. 535 would require a number of regulatory actions on PFAS, including:

  • A requirement that EPA designate PFOA, PFOS, and their salts as hazardous substances under CERCLA § 102(a) within one year of enactment, and determine within five years of enactment whether to designate additional PFAS as hazardous substances.
  • An amendment to TSCA § 4 directing EPA to adopt a rule requiring comprehensive toxicity testing on all PFAS, with a proposed test rule due six months after enactment and a final rule due two years after enactment.
  • An amendment to TSCA § 5 eliminating exemptions for PFAS (such as those for R&D, impurities, and the low-volume exemption).
  • An amendment to TSCA § 5 providing that, for five years after enactment, all PFAS that are the subject of premanufacture notices or significant new use notices are deemed to present an unreasonable risk. EPA would be required to issue orders to prohibit all manufacture, processing, and distribution of those PFAS.
  • An amendment to SDWA § 1412(b) directing EPA to promulgate a national primary drinking water regulation for PFAS (including at last PFOA and PFOS) within two years of enactment. It would also require EPA to publish a health advisory for a PFAS not subject to a national primary drinking water regulation within one year of a finalized PFAS toxicity value or effective quality control and testing procedure for a PFAS, whichever is later.
  • A provision that EPA may not impose a financial penalty for violation of a PFAS national primary drinking water regulation until five years after its adoption.
  • An amendment to the SDWA requiring EPA to establish a program to award grants to affected community water systems.
  • A requirement that EPA adopt a final rule adding PFOA, PFOS, and their salts to the list of hazardous air pollutants under the Clean Air Act § 112(b) within six months of enactment, and to determine within five years of enactment whether to issue final rules adding other PFAS to that list.
  • An amendment of RCRA § 3004 to prohibit unsafe incineration of PFAS.
  • A requirement that EPA revise the Safer Choice Standard of the Safer Choice Program within one year of enactment to identify requirements for certain consumer products to meet to be labeled with a Safer Choice label, including a requirement that they not contain any PFAS.
  • A requirement that EPA issue guidance on minimizing the use of AFFF and related equipment containing PFAS within one year of enactment.
  • A requirement that EPA investigate methods and means to prevent contamination of surface waters by GenX.
  • A prohibition of introducing PFAS pollutants to a treatment works under the Federal Water Pollution Control Act (FWPCA) without first notifying the treatment works of the identity and quantity of each PFAS; whether the PFAS is susceptible to treatment by the treatment works; and whether the PFAS would interfere with the treatment works.
  • A requirement that EPA establish a website containing information on the testing of household well water within one year of enactment.
  • A requirement that EPA develop a risk-communication strategy to inform the public about potential hazards of PFAS.
  • A requirement that EPA publish a plan under FWPCA § 304(m) by September 30, 2021, that contains the results of a review of the introduction into treatment works or discharge of PFAS from categories of point sources (other than publicly owned treatment works). Based on that results of that review, EPA would be required to initiate as soon as practicable the process for adding certain PFAS to the list of toxic pollutants under FWPCA § 307(a), and within two years of publication of the plan to publish human health water quality criteria for other PFAS. EPA would also be required to adopt human health water quality criteria for PFOA, PFOS, and their salts within two years of enactment for each priority industry category, and to adopt a final rule within four years of enactment establishing effluent limitations and pretreatment standards for those PFAS for each priority industry category.

The White House announced on January 7, 2020, that it strongly opposes H.R. 535 and that President Trump’s senior advisors may recommend the bill be vetoed if passed by both Houses.

© 2020 Beveridge & Diamond PC

For more on PFAS regulation, see the Environmental, Energy & Resource section of the National Law Review.

PFAS Rolling into Regulation

Introduction

Per- and polyfluoroalkyl substances, abbreviated as PFAS, are a class of widely dispersed chemicals quickly gaining notoriety in the public health and environmental remediation space. In 2019, rapid developments toward regulation to govern the investigation and cleanup of PFAS contamination to protect human health are occurring in a wide variety of arenas, including federal regulation and congressional action as well as at the state level through both regulation and enacted legislation. This article examines the current state of regulatory developments for PFAS and projects where things are heading in the remainder of 2019, with particular focus on how those developments will incentivize and accelerate the pace of site cleanups and cost recovery, and pose significant challenges to existing sites where other contaminants are already being addressed.

What are PFAS?

PFAS are a class of more than 4,000 synthetic chemicals comprised of carbon-fluorine chains of varying lengths. PFAS have been in use since the late 1940s, due to their unique resistant physical and chemical properties. For example, PFAS have been used in non-stick applications such as cookware, paper packaging, and textiles, as well as in certain types of firefighting foam.[1] The two most widely studied PFAS are perfluorooctane sulfonate or PFOS and perfluorooctanoic acid or PFOA.

Over the past decade, understanding of PFAS and their potential toxicity to humans and the environment has increased. Of particular concern is their stability in the environment. The properties that made PFAS so desirable for commercial and industrial use keep these compounds from degrading in the environment and allow them to pose a long-term threat if not removed from the environment and/or from drinking water supplies. Common exposure to these compounds can come through their product use as well as drinking from contaminated water supplies impacted by their release. Also notable are the very low levels at which these compounds exhibit their toxicity, and the very stringent levels under consideration by the regulatory agencies for controlling these compounds. For example, EPA has set interim screening levels of 70 nanograms per liter (parts per trillion or ppt), and several states have proposed guidance levels of 15 ppt or less. For context, 15 ppt is equivalent to a few droplets in an Olympic-sized swimming pool.

Federal Regulatory Developments

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes cleanup at sites where hazardous substances have been released, and enables parties conducting cleanups to seek cost recovery from other potentially responsible parties. The ability to potentially recover costs under CERCLA can be an important driver in encouraging impacted parties to investigate and remediate contaminated sites. However, as an emerging contaminant class, PFAS are not currently regulated as hazardous substances under CERCLA.

In February 2019, EPA issued an Action Plan outlining its steps to address PFAS and protect public health.[2] Among its listed priority actions was to propose a national drinking water regulatory determination for the two most widely studied PFAS, PFOA and PFOS, by the end of 2019. This proposed determination would begin the process towards establishment of a maximum contaminant level, or MCL, for these compounds. Another priority action was to initiate the process to list PFOA and PFOS as CERCLA hazardous substances; in April of 2019 at a meeting of state regulators, EPA committed to proposing this hazardous substance designation by the end of 2019.[3] Such a designation will have a multitude of impacts, including 1) PFOA and/or PFOS-contaminated sites will be eligible for listing as Superfund sites; 2) Federal and State authorities will have mechanisms through which they can seek damages or cleanup costs from responsible parties; and 3) Superfund monies will be eligible for use in cleaning up sites contaminated with PFOA and/or PFOS.

This commitment to regulate PFOA and PFOS under CERCLA was reaffirmed in a keynote speech of EPA’s General Counsel on September 12th at the American Bar Association, Section Environment, Energy, and Resources Fall Conference in Boston, Massachusetts. In his speech, the Honorable Matthew Leopold indicated that EPA was actively looking at designating PFOA and PFOS as CERCLA hazardous substances by year’s end. This would represent one of the few times in which new contaminants such as these were regulated under CERCLA.

Concurrent with these EPA actions, congressional legislators have called for increased and expedited federal action to regulate PFOA and PFOS, and in some cases the entire PFAS class of 4000 plus chemicals. There have been several bills proposed in 2019 which would commit EPA to taking expedited action with regards to PFAS, including listing some or all PFAS as hazardous substances, and establishing federal MCLs.[4] Perhaps most notably are two bills regarding appropriations for the Fiscal Year 2020 National Defense Authorization Act. S.1790 (passed by the Senate on June 27, 2019) would require EPA to promulgate drinking water MCLs for PFOA and PFOS within two years of enactment, and H.R.2500 (passed by the House on July 12, 2019) would require EPA to designate all PFAS as hazardous substances within one year of enactment.

State officials have also actively petitioned for more expedited federal action on PFAS. On July 30, 2019, 22 state and territory attorneys general issued a letter to Congress requesting that certain PFAS be designated hazardous substances, in particular, PFOA, PFOS, and a PFOA-replacement chemical known as GenX. In their letter, the attorneys general specifically note that such a designation would promote cleanup efforts, including federal facilities formerly owned or operated by the US Department of Defense.[5]

Based on these developments from multiple agencies and levels of government, it appears likely that in the relatively short term PFOA and PFOS will be designated as hazardous substances under CERCLA. This in turn will open the door for CERCLA regulation of PFAS-contaminated sites. Once designated, the next question will be one of appropriate cleanup levels. Typically, EPA would take the lead with establishment of MCLs that can be used to develop risk-based cleanup levels, and from which states could either adopt or modify. However, the process for proposing and finalizing a federal MCL can take years. Thus, faced with increasing public pressure to respond to PFAS contamination, the states have stepped in to fill this gap.

State Regulatory Developments

In November 2018, New Jersey became the first state to issue an MCL for any individual PFAS, specifically for the chemical perfluorononanoic acid (PFNA).[6] For PFOA and PFOS, there are currently no state MCLs that have been finalized. However, many states have established PFOA and PFOS advisory or screening levels, and several states have begun the MCL rule-making process, with some anticipating finalization this year.

In 2019, three states have proposed MCLs of varying concentrations for PFOA and PFOS:

  • In April, New Jersey proposed an MCL of 14 ppt for PFOA and 13 ppt for PFOS; the public comment period has since closed, and the standard is in the process of finalization;[7]
  • In June, New Hampshire proposed an MCL of 12 ppt for PFOA and 15 ppt for PFOS (they also proposed MCLs for two other PFAS chemicals);[8] those MCLs were approved on July 18,[9] and will become effective on October 1; and
  • In July, New York proposed an MCL of 10 ppt for PFOA and PFOS making them the most protective standards in the nation; the proposal is currently out for public comment, which closes on September 24.[10]

In addition, several other states have provided commitments to establishing MCLs in the near future. These include Massachusetts with an MCL rule proposal anticipated by the end of 2019;[11] Michigan with an MCL rule proposal expected by October with finalization in 2020;[12] and Vermont with a commitment to establishing and adopting MCLs by February 1, 2020.[13] Other states are also moving forward with efforts to regulate PFAS. For example, in August 2019 California established notification levels for PFOS and PFOA in drinking water of 6.5 ppt and 5.1 ppt, respectively, that go into effect January 1, 2020. [14],[15]

Conclusion

With federal and state regulatory action underway, and mounting public pressure to expedite a response, it is clear that regulation of some PFAS under CERCLA is imminent. By the end of the year, it is likely that 1) EPA will have designated, or be close to designating, PFOA and PFOS as hazardous substances; and 2) several states will have finalized MCLs to regulate their remedial response. These two developments will open the door for parties to investigate, cleanup, and ultimately recover the costs associated with PFAS-contaminated sites. In addition, these developments will likely complicate existing sites in terms of both their required remedial response as well as their cost recovery strategy. New PFAS regulation at existing sites will unlock a myriad of cost implications not the least of which involve cost allocation among potentially responsible parties. In the face of these complications and uncertainties, what is clear is that PFAS regulation has rolled off the horizon and directly in front of those involved with protecting public health and the environment.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm or its clients. This article is for general information purposes and is not intended to be and should not be taken as legal or accounting advice.

[1]  For a more thorough background on the history and usage of PFAS, see the Interstate Technology Regulatory Council fact sheets at https://pfas-1.itrcweb.org/

[2] https://www.epa.gov/newsreleases/epa-acting-administrator-announces-first-ever-comprehensive-nationwide-pfas-action-1

https://www.epa.gov/pfas/epas-pfas-action-plan

[3] https://www.asdwa.org/2019/04/11/cooperative-federalism-pfas-are-top-issues-at-ecos-spring-meeting/

[4]  https://fas.org/sgp/crs/misc/R45793.pdf

[5]  https://portal.ct.gov/-/media/AG/Press_Releases/2019/Multistate-PFAS-Legislative-Letter73019FINAL.pdf

[6]  New Jersey regulated PFNA largely in response to a regional issue relating to specific historic discharges from a chemical manufacturing facility.

[7]  https://www.nj.gov/dep/rules/notices/20190401a.html

[8]  https://www.des.nh.gov/media/pr/2019/20190628-pfas-standards.htm

[9]  https://www.gencourt.state.nh.us/rules/jlcar/minutes/AM7-18-19.pdf

[10]  https://www.governor.ny.gov/news/governor-cuomo-announces-availability-350-million-water-system-upgrades-statewide-and-directs

[11]  https://www.mass.gov/files/documents/2019/06/20/pfas-stakeholder-presentation-20190620.pdf

At the American Bar Association, Section Environment, Energy, and Resources Fall Conference in Boston, Massachusetts, the Commissioner of the Massachusetts Department of Environmental Protection participated in a panel discussion titled “The State of CERCLA Following EPA Reform: More of the Same or Something Super?” In this discussion, Mr. Suuberg indicated that Massachusetts will finalize its PFAS standards by the end of the year, and in an accompanying paper noted that the comment period on the proposed cleanup standard of 20 ppt (for a sum of six PFAS) had closed in July and was currently under review.

[12]       https://www.michigan.gov/egle/0,9429,7-135-3308_3323-494077–rss,00.html

[13]       https://dec.vermont.gov/sites/dec/files/PFAS/Docs/Act21-2019-VT-PFAS-Law-Factsheet.pdf

[14]            https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/PFOA_PFOS.html

[15]      California already had notification levels of 14 ppt for PFOA and 13 ppt for PFOS and will continue to have a response level for those drinking water systems exceeding 70 ppt for the total combined concentration of both compounds, consistent with EPA’s advisory level. 

© Copyright Nathan 2019

ARTICLE BY Brian Henthorn and Christopher Loos of Nathan.
For more PFAS Regulation developments, see the National Law Review Environmental, Energy & Resources law page.

State Water Board Unveils Aggressive Plan to Issue Investigative Orders for PFAS

Environmental & Natural Resources

  • Within the month, the State Board will issue orders requiring investigation of potential PFAS contamination, a widely used class of chemicals, at more than a thousand California facilities.
  • Phase I targets airports and landfills.
  • Phases II & III, to be implemented later this year, will include refineries, bulk terminals, fire training facilities, wildfire areas, manufacturers, wastewater plants, and domestic wells.

On March 6, the California State Water Resources Control Board announced it will soon issue orders to owners and operators of more than a thousand facilities in California requiring environmental investigation and sampling for per- and polyfluoroalkyl substances, known by the acronym PFAS. As “Item 10” in a four-hour meeting providing updates on state and federal programs addressing PFAS, Darrin Polhemus, Deputy Director of the State Board’s Division of Drinking Water (DDW), and Shahla Farahnak, Assistant Deputy Director of the Division of Water Quality (DWQ), unveiled an aggressive “Phased Investigation Plan.”

ABOUT PFAS

PFAS are a class of chemicals widely used for decades in many consumer products for their grease- and stain-resistant properties, including nonstick products, carpeting, furniture, and makeup. PFAS were also commonly essential ingredients of firefighting foams used at airports and other locations where large quantities of flammable fuels were present. PFAS compounds are potentially toxic at extremely low levels. In the last several years, public scrutiny of PFAS has accelerated as their environmental prevalence has become better understood. Testing performed in connection with the U. S. Environmental Protection Agency’s (USEPA’s) third “Unregulated Contaminant Monitoring Rule” (UCMR3) identified 133 PFAS detections in California drinking water systems, and follow-up testing resulted in nearly 300 more detections.

PHASE I ORDERS IMMINENT

In Phase I of its investigation plan, the State Board will issue orders to 31 airports it believes to have used PFAS-containing aqueous firefighting foam, and 252 landfills it believes to have accepted materials that contain PFAS. The State Board will also issue investigative orders to operators of 578 drinking water wells within a two-mile radius of one of the airports, and 353 drinking water wells within a one-mile radius of the landfills. It will also issue orders for 389 drinking water sources within a mile radius of PFAS impacts identified in the UCMR3 testing.

State Board staff have already drafted the Phase I orders and expect to issue them by the end of this month, if not sooner.

PHASES II & III EXPECTED SUMMER/FALL 2019

The State Board is still formulating the next phases, but staff said “high priority” targets in Phase II will be refineries, bulk terminals, and non-airport fire training areas. Phase II would also include manufacturers of PFAS, if any. (Presently, the Board does not believe there are any in California, but it intends to verify that understanding as part of the investigation.) In the second phase, the State Board will also test storm water in areas of the massive 2017 and 2018 California wildfires to evaluate whether burning of consumer products in those fires resulted in PFAS releases to the environment.

Phase III will focus on so-called “secondary manufacturers” – those that use PFAS in their products or processes. Board staff specifically mentioned plating facilities as potential targets. The third phase will also include wastewater treatment and pre-treatment plants, and domestic wells.

State Board staff expects to implement Phases II and III in the summer and fall of this year.

TIMELINE AND STRATEGIC CONSIDERATIONS FOR RESPONDING TO ORDERS

If you get an order, you will need to be prepared to respond quickly. Targeted source facilities will receive an order issued by the State Board under the authority of California Water Code section 13267. These orders will require businesses to respond to a questionnaire regarding the historical use of PFAS-containing products within 30 days, and to submit work plans for conducting testing within 60 days. After the work plans are accepted, businesses will have 90 days to perform the testing and submit the results.

Source: Presentation at State Water Resources Control Board Meeting, March 6, 2019, Water Boards PFAS Phased Investigation Approach
https://www.waterboards.ca.gov/pfas/docs/7_investigation_plan.pdf

Regulated entities should use great care in responding to these orders. Failure to comply may be punished by fines ranging from $5,000 to $25,000 per day per violation. Under the statute, the burden, including costs, of the ordered reporting must “bear a reasonable relationship to the need for the report and the benefits to be obtained from the reports” and responding parties may take steps to protect their trade secrets from public disclosure as a result of required reporting. Moreover, appropriate execution of the required testing is critical. Because PFAS are so widely used in consumer products, there are myriad opportunities for cross-contamination that could result in false positives if exacting sampling protocols are not utilized.

Targeted water system operators will receive an order from DDW under California Health & Safety Code section 116400. Those orders will require periodic PFAS analyses, likely on a quarterly basis, unless DDW determines that a different schedule is reasonable.

FEDERAL PFAS ACTION PLAN AND NEXT STEPS IN CALIFORNIA

California’s Phased Investigation Plan comes on the heels of the February 14 release of the USEPA’s PFAS Action Plan, identifying short- and long-term actions USEPA plans to take over the coming years. USEPA said it will set federally enforceable Maximum Contaminant Levels (MCLs) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – two members of the PFAS family, designate those chemicals as hazardous substances under the Superfund law, require monitoring for additional PFAS in the next UCMR, and develop interim cleanup standards for PFAS in groundwater. The Action Plan would give the federal government greater enforcement authority over PFAS and has come under fire from a number of consumer advocacy and political organizations.

The State Board, somewhat uncharacteristically, has not been on the forefront of PFAS regulation. In 2016, the USEPA published a Health Advisory Level of 70 parts per trillion (ppt) in drinking water for combined PFOA and PFOS. Then, in November 2017, New Jersey announced that it would be the first state to establish a legally enforceable MCL for PFOA, setting it at 14 ppt, the most stringent standard in the country.

California has been more measured in its response. As Allen Matkins previously reported, in November 2017, the state added PFOA and PFOS to the Proposition 65 list of chemicals “known to the state” to cause reproductive toxicity, and in July of last year DDW set “notification levels” of 13 ppt for PFOS and 14 ppt for PFOA, and a “response level” of 70 ppt for combined PFOA and PFOS. Yet, to date, there is no enforceable drinking water or cleanup standard for PFAS in California, and Deputy Director Polhemus’ comments at the March 6 meeting made clear that none is imminent. The State Board and others are struggling with how best to address the whole class of thousands of PFAS chemicals without undertaking the massive regulatory effort required to set MCLs for each individual chemical in the family. Given this challenge, DDW has not requested a Public Health Goal (PHG) for any PFAS chemicals, and Deputy Director Polhemus said any such PHG is still at least a couple of years off, with potential MCLs at least a few years behind that.

The release of DDW’s Phased Investigation Plan, however, is the first major step in California’s systematic approach to investigating the release of PFAS to the environment, and signals an imminent new regulatory regime.

More information on the State Board’s March 6, 2019 meeting is available here.

© 2010-2019 Allen Matkins Leck Gamble Mallory & Natsis LLP
This post was written by Kamran Javandel and Vaneeta Chintamaneni of Allen Matkins.

Municipal utilities need to be concerned with PFAS

Municipalities face increasing challenges under the growing regulatory focus of the United States Environmental Protection Agency (EPA) and state environmental agencies on the emerging contaminants Per-and Polyfluoroalkyl Substances, known by the acronym “PFAS.” This newsletter will describe some of those challenges for municipalities and the announcement  and the importance of following good protocol when sampling and analyzing for these compounds.

What are PFASs and why are they considered harmful?

PFASs are a group of chemicals that have been used since the middle of the 20th century in many industrial applications and consumer products including stain proofing for water proof carpeting, clothing, upholstery, leather treatment, food paper wrappings, firefighting foams (commonly used at military bases, airports, fire stations and refineries), car washing cleaners, metal plating and non-stick cookware (such as Teflon). Some research has suggested probable links between exposure to PFAS and diagnosed high cholesterol, ulcerative colitis, thyroid disease, testicular and kidney cancers and pregnancy induced hypertension. As a result, the family of PFAS chemicals have been classified by EPA as an “emerging contaminant.”

EPA has set a lifetime health advisory (LTHA) level (the level below which no harm is expected) for two PFASs in drinking water: perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The PFOA/PFOS LTHA level is 70 parts/trillion, which is equivalent to about 3 ½ drops of water in an Olympic swimming pool. The low threshold is a signal of the risk potential for this emerging contaminant as well as the difficulty in confidently determining the concentrations of PFOA/PFOS in water samples and the challenges in undertaking cost effective remediation when PFASs are discovered.

PFAS concerns for municipal utilities

In November 2018, President Trump signed the America’s Water Infrastructure Act of 2018 (AWIA). This legislation will require smaller communities to test their water systems for chemicals like PFOA and PFOS. Prior to the signing of this AWIA legislation, only water systems with more than 10,000 community customers were required to test for PFAS chemicals. Under this new legislation, smaller water utility communities who serve between 3,000 – 10,000 customers must also begin testing for these emerging contaminants.

In addition, on Feb. 4, 2019, the EPA announced its PFAS Action Plan. See here. In particular, EPA has announced its intention to develop a maximum contaminant level for PFOS and PFOA, including the LTHA reference point of 70 parts/trillion as a federally enforceable drinking water standard, under the Safe Drinking Water Act.

In a memorandum dated Feb. 20, 2018, the state of Michigan announced a monitoring proposal for waste water treatment plants that accept potential sources of PFAS to begin testing their facilities for PFAS containing chemicals. Michigan also has begun testing leachate from landfill facilities that accept municipal solid waste. The results of these preliminary tests have recorded the presence of PFAS in leachate generated by many of these landfills. Since leachate is commonly sent to wastewater treatment facilities for treatment, this discovery of PFAS in leachate could raise additional concerns for municipal treatment facilities, particularly since PFAS compounds are not specifically addressed in municipal wastewater treatment. The concern is that the PFAS is eluding treatment and is present in the effluent or other waste streams, or is adsorbing to the biosolids and sludges generated by the WWTP, which are thereafter frequently land spread with uncertain impacts.

An additional concern for municipalities, separate from wastewater, relates to historic (and potentially closed) waste landfills owned and operated by municipalities. Certain studies suggest that discarded carpet (such as Stainmaster products) and clothing (such as products treated with Scotchgard) are leading sources of PFAS contamination, including the leachate, in landfills.

Finally, the Wisconsin Department of Natural Resources (WDNR) has convened a PFAS Technical Advisory Group to discuss a broad range of PFAS concerns in Wisconsin. The first quarterly meeting of the Advisory Group occurred on Feb. 22, 2019. More information on the PFAS Technical Advisory Group can be found here.

All of these developments suggest that municipal utilities should be concerned about the legal implications of detections of PFAS. Given the extraordinarily low health advisory standards that apply to this class of chemicals (parts per trillion), these municipal utilities must take great care in deciding when to test for these materials and, if a decision is made to test, the quality assurance and quality control measures that should be taken to ensure reliable results.

Copyright © 2019 Godfrey & Kahn S.C.

 

This post was written by Arthur J. Harrington Daniel C.W. Narvey and Edward (Ned) B. Witte of Godfrey & Kahn S.C.

Read more on PFAS regulation on the Environmental type of law page.

U.S.EPA Announces National “PFAS Action Plan”

The United States Environmental Protection Agency (U.S.EPA) acting Administrator, Andrew Wheeler, held a press conference at EPA Region III in Horsham, Pennsylvania on Feb. 14, 2019, to announce the U.S.EPA’s PFAS Action Plan. Wheeler indicated that similar announcements of and press conferences relating to the PFAS Action Plan were being held simultaneously in each of the U.S.EPA’s ten regional offices, underlying the importance of the announcement. Wheeler stated that the Agency’s plan was the most comprehensive cross-agency plan introduced by the U.S.EPA.

Acting Administrator Wheeler highlighted five key elements of the PFAS Action Plan:

  1. U.S.EPA has initiated actions to develop a Maximum Contaminant Level, or MCL, for PFAS, and specifically for two PFAS compounds, PFOS and PFOA, by the end of 2019. Wheeler stated that this would be the first substance to have an MCL established since the Safe Drinking Water Act was amended in 1996. Wheeler added that the U.S.EPA maintains that the 70 parts per trillion (ppt) standard is a federally enforceable groundwater standard, despite misconceptions to the contrary.

  2. U.S.EPA will continue to pursue enforcement actions utilizing the existing Health Advisory Level for PFAS of 70 ppt or 70 nanograms per liter.

  3. U.S.EPA will expand monitoring and data gathering related to PFAS, including adding PFAS to the toxics release inventory, which should generate additional information on the extent of PFAS in the industry and in the environment. Wheeler indicated that U.S.EPA is using enhanced mapping tools to identify where and in what communities PFAS is in the groundwater and in the environment.

  4. U.S.EPA will expand research into the impacts of PFAS on human health and the environment, studying fate and transport issues associated with PFAS. Wheeler stated that U.S.EPA wants to “close the gap” on the science related to PFAS, including the more recently manufactured perfluourinated compound known as “GenX”,

  5. U.S.EPA will develop a “risk communication toolbox” that will provide information to the public and the regulated community more clearly.

Copyright © 2019 Godfrey & Kahn S.C.
For more Environmental News, check out the National Law Review’s Environmental Type of Law page.