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Agency Actions to Address “Forever Chemicals” will Impact a Wide Range of Industries

October 17, 2022

While PFAS chemicals, the so-called “forever chemicals,” have been in the news for some time, State and Federal regulatory agencies are beginning to address these chemicals more aggressively.  These actions will likely impact a wide range of industries and will inevitably lead to regulatory requirements and litigation brought by the government or private plaintiffs.  Some of the key agency actions are summarized below.

On October 12, 2022, the Pennsylvania Environmental Quality Board (EQB) adopted Maximum Contaminant Levels (MCL) for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), two chemicals in the PFAS family of chemicals. The MCLs will apply to most public water systems, including bottled water and bulk water suppliers.  The MCLs are 14 nanograms per liter (ng/l) for PFOA and 18 ng/l for PFOS.  Water suppliers will be required to monitor their “finished water” (i.e., treated water) at each point of entry into the distribution system.  Quarterly monitoring will be required beginning January 1, 2024, for systems serving more than 350 customers and January 1, 2025, for the remainder.  The regulation also mandates laboratory test methodologies to be used to analyze the water, specifying United States Environmental Protection Agency (USEPA) test methods to be used and the minimum reporting level to be achieved.  Laboratories used by the water supplier must demonstrate that they can measure PFOA and PFOS at the required levels and must be accredited by the Pennsylvania Department of Environmental Protection (PADEP).

To date, the USEPA has not proposed or promulgated an MCL for PFOS or PFOA pursuant to the federal Safe Drinking Water Act, but it has announced its intention to propose a rule by the end of this year and finalize it by the fall of 2023.  Whether USEPA’s MCLs will be the same as the ones adopted by the EQB (and implemented by PADEP) is, of course, unknown at this time.  However, the USEPA has proposed and recently revised Health Advisory Levels (HALs) for these two chemicals and those levels are orders of magnitude lower that the state’s EQB regulations.  HALs are not legally binding but are informative.  Set in parts per quadrillion, they are lower than what laboratory testing methods can currently detect.

Looking beyond public water supplies, PFAS will be taking a more prominent role in the remediation realm.  On September 6, the USEPA proposed designating PFOA and PFOS as hazardous substances pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly referred to as the “Superfund” statute.  Obviously, these substances will now need to be addressed in all CERCLA relevant documents and could even be a reason for reopener of the remedial action plan.  On the state level, the statewide health standards for groundwater under the Pennsylvania Land Recycling and Environmental Remediation Standards Act (Act 2), Pennsylvania’s brownfields and overarching remediation statute, are based on MCLs.  One can expect that PADEP will move to amend the regulations implementing Act 2, found in Chapter 250, to add PFOA and PFOS to the statewide health standard for groundwater.  Accordingly, sampling for these PFAS substances will likely become a routine part of Act 2 remediations.  McNees is aware of at least two instances in which PADEP has already begun treating PFAS and PFOS chemicals as hazardous substances under the Pennsylvania Hazardous Sites Cleanup Act, the state “Superfund” statute, in state-initiated remediation projects.

This spring, the USEPA advised companies that process, distribute, use, or dispose of high-density polyethylene and similar plastic containers that PFAS has formed within and migrated from those containers.  The USEPA asserts that PFAS has migrated into the substance held by the plastic container and is released when the product is dispensed of or when the container is discarded.  Accordingly, USEPA has looked at PFAS levels in landfill leachate.

Historically, PFAS litigation has centered around groundwater contamination near former military bases.  However, PADEP has collected water quality data from streams around the state showing levels of PFAS above in the MCLs in many streams.  Based on that data PADEP is working to develop a water quality criterion for PFAS, which may then result in new parameters in NPDES permits.

With the promulgation of new regulations and a heightened focus on potential PFAS sources, new compliance obligations, enforcement actions and toxic tort suits are inevitable.

For more information on how to deal with these developments, contact any of our attorneys in the Environmental Law and Toxic Tort Group:  Terry Bossert; Scott Gould; Brigid Landy-Khuri or Errin McCaulley, Jr.