EPA PFAS Action Plan will bring back the fun in Superfund

Last month, the United States Environmental Protection Agency (“EPA”) issued its Action Plan  to address concerns about perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) which have increasingly being detected in drinking water systems. The action plan has the potential to significantly increase liability for manufacturers and users of products containing or treated with these compounds..

What are PFAS and How Are They Used?

PFOA and PFOA belong to a class of approximately 4,700 synthetic chemicals known as per- and polyfluoroalkyl substances (PFAS). Although domestic production of PFOA and PFOS ceased in 2015, these chemicals are still manufactured in other countries. Indeed, China, India and Russia have now become leading manufacturers of these chemicals.  However, stocks of PFOA and PFOS purchased before the phase out may remain at many facilities and companies have been replacing PFOS and PFOS with other substances that share many of the same chemical properties

PFAS have been used in coatings that are used to impart water and grease resistance in a wide variety of consumer products such as non-stick cookware, clothing, upholstery and carpeting, sandwich wrappers, pizza and other takeout boxes, single-use paper plates, microwave  popcorn bags, candy wrappers, and personal products (e.g. shampoo, sun screen and hand-cream).

PFAS have also been used in a wide variety of industries including aerospace, automotive, construction, electronics and photographic industries, semiconductor manufacture, performance plastic coatings, hydraulic fluids, car wash/wax finishes, electroplating mist suppressants, lubricant additives, molded-rubber formulations, inks, varnishes, waxes, lubricants, other cleaning agents, and pesticides  as well as firefighting foams.

PFAS easily dissolve in water and can migrate significant distances in groundwater. They are also very stable and so persistent in the environment that PFAS have been coined “forever chemicals.  When they do undergo degradation, PFAS usually form other PFAS compounds.

Once thought to be safe, PFAS have been linked to adverse human health effects including low infant birth weights, cancer and thyroid hormone disruption at low-levels of exposure. Even though PFAS have been in use since the mid-20th century, there is limited toxicity information for the vast majority of these chemicals. The exposure pathways, populations exposed, and levels of exposure are also not well understood.

What is known is that PFAS are readily-absorbed and bioaccumulate. Unlike another ubiquitous contamination, PCBs, which tends to be stored in fatty tissue, PFAS primarily accumulate in blood serum.  Studies show that humans do not metabolize PFAS nor does the human body excrete the substances very rapidly. Thus, it may take years for the human body to rid itself of PFASs. Indeed, prior studies have found PFAS in the blood serum of 98% of people tested.

Potential exposure routes include:

  • Drinking contaminated water
  • Eating fish from contaminated water bodies;
  • Eating crops grown in contaminated soils (e.g. agricultural land treated with biosolids from wastewater treatment plants);
  • Infant consumption   of   contaminated  breast  milk;
  • inhalation of contaminated air;
  • Inhalation of house dust containing PFCs from treated clothes or carpets; and
  • Direct contact with consumer products that have been treated with PFCs  or which contain residuals from a manufacturing process.

PFAS in the Environment

The universe of sites potentially contaminated with PFOA and PFOS is stunning. They have not only been found at sites where the chemicals were manufactured but also at facilities using PFAS products to manufacture other products (secondary manufacturing facilities). Extensive groundwater contamination has been found at or near airports, military sites and  civilian fire training areas  where aqueous film-forming foams (AFFF) has been used to extinguish fires, for firefighting training and in fire suppression systems.

Because of their widespread use, PFAS have been detected in all environmental media including ambient and indoor air, soil, sediments, surface water and groundwater. The leading source of groundwater contamination is believed to be releases associated with AFFF. Other common sources of PFAS contamination include leachate from municipal solid waste landfills where products such as clothing or carpet coated with PFAS were disposed, wastewater discharges containing PFAS from publicly owned treatment plans or discharges from industrial or commercial facilities into septic systems and other Class V UIC program wells, contaminated stormwater into dry wells, application of wastewater sludges on land as well as aerial deposition of PFAS-contaminated particulates.

A 2016 study published Environmental Science & Technology Letters found PFAS at the minimum detection levels in 194 public water supplies in 33 states serving 16 million people. 66 public water suppliers had at least one water sample that measured at or above the EPA recommended limit. In 2017, the Department of Defense found  564 public or private drinking water systems with PFAS above the EPA recommended level. A 2018 study of PFOS and PFAS concluded that 1,500 drinking water systems serving 110 Americans may be contaminated with PFOS/PFAS

Proposed Safe Drinking Water Act (SWDA) Regulation

Under the SDWA, EPA may adopt enforceable Maximum Contaminant Levels (MCLs) which is the highest level of a contaminant that is allowed in drinking water based on health risks, cost and technical feasibility. While EPA has not adopted MCLs for PFAS, the agency, EPA issued a lifetime Health  Advisory  Level (“HAL”) of 70 parts per trillion (“ppt”)-the equivalent of 3 ½ drops in an Olympic swimming pool

HALs are nonbinding guidance that identify the concentration of unregulated contaminants in drinking water at which adverse health effects are not anticipated to occur over a lifetime. HALs may be used by state and local officials to evaluate risks and determine actions for reducing risks posed by unregulated contaminants in public drinking water systems.

By way of comparison, the Agency for Toxic Substances and Disease Registry (ATSDR) issued an updated Toxicity Profile for Perfluoroalkyls  in 2018 which revised the  minimal risk level (MRL) for PFOA and PFOS. An MRL is screening levels that represents the estimated amount of a chemical a person can eat, drink, or breathe each day without a detectable risk to health. The intermediate oral (15 to 364 days) MRL for PFOA was revised to 0.000003 mg per day and 0.000002  mg per  day for PFOS.

Pursuant to the under the third Unregulated Contaminant Monitoring Rule (UCMR 3) issued in 2012, EPA required certain water systems to monitor for six PFAS . The agency has also used its emergency authority under section 1431 of the SWDA to issue administrative orders for several sites that have impacted drinking water. In 2018, EPA issued a guidance document to its regional offices encourage more widespread use of section 1431 authority to issue either unilateral administrative orders or administrative orders on consent for injunctive-type relief. To use its 1431 authority for contaminants without an MCL, the agency must establish that a contaminant is:

  • “present or likely to enter” a public water system or underground source of drinking water
  • “presents or may present an imminent and substantial endangerment” to human health, and
  • state or local authorities have not sufficiently acted to protect the human health. Unlike other SWDA enforcement authorities

Under its action plan, EPA hopes to issue maximum contaminant level (MCLs) for PFOA/PFOS. The process of developing MCLS is complex and could take several years to complete.

EPA intends to propose nationwide monitoring for other PFAS compounds in drinking water under its fourth UCMR. The agency also considering developing water quality criteria for PFAS and effluent limitations guidelines for certain industrial categories under the Clean Water Act.

States have historically relied on EPA to develop drinking water standards. However, several states have adopted or in the process of developing their own PFOA and/or PFOS standards. Vermont, Minnesota, and New Jersey have set levels of the contaminants that are lower than the EPA HAL while New Hampshire, New York, and California have proposed guideline levels that are lower than the EPA HALs. Some states have fish consumption advisories for certain water bodies where PFOS has been detected in fish while others are requiring leachate from municipal landfills to sample for PFAS and even banning use of PFAS in certain products.

Proposed Listing as CERCLA Hazardous Substances

PFAS are not currently regulated as hazardous substances under CERCLA. As a result, EPA currently has limited ability to use its CERCLA authority to address releases of PFAS.

Under section 104 of CERCLA, EPA may conduct removal actions to address releases of “pollutants or contaminants” but the agency must make a finding that the release poses an “imminent and substantial endangerment” before it can use its removal authority.  Even when EPA makes such a finding, it cannot seek cost recovery under section 107 since this authority is limited to response costs associated with releases of hazardous substances.

This lack of cost recovery has been a particular problem for communities near existing or closed military bases, airports, and firefighting training facilities since public water suppliers have had to incur wellhead treatment costs, provide alternate sources of drinking water or extend water service to residences with private wells. Illustrating the potential magnitude of this problem, the Department of Defense has identified 401 active and Base Realignment and Closure (BRAC) with PFAS contamination. EPA estimates that there may be hundreds of additional PFAS-contaminated sites that could warrant inclusion on the National Priorities List (NPL).  Further exacerbating the problem for smaller communities is that the America’s Water Infrastructure Act of 2018 (AWIA) requires water utilities with fewer than 10,000 customers to begin testing for PFAS. Previously, only water systems serving more than 10,000 community customers had to sample for PFAS.

Because PFAS are not CERCLA hazardous substances, EPA cannot place sites on the National Priorities List (NPL) solely based on the presence of releases of PFAS.  Similarly, EPA cannot currently use its authority under section 106 to issue unilateral administrative orders for PFAS contamination since that section is limited to releases of hazardous substances that may present an imminent and substantial endangerment. However, it can and has issued UAOs where PFAS are co-located with other hazardous substances.

EPA has been addressing PFAS where it is a secondary contaminant at NPL sites.  For example, EPA has identified PFAS contamination at 29 NPL sites while 140 Federal Facility NPL sites have known or suspected PFAS contamination. EPA is actively involved at 58 of these Federal Facility NPL sites.

In some instances, the agency has sought relief under RCRA 7003 where PFAS contamination may pose an imminent and substantial endangerment. While this authority is not limited to impacted drinking water supplies, EPA can only issue orders for releases of “solid wastes.” In contrast, SWDA 1431 Section 1431 covers a broader universe of “contaminants”.

The second major regulatory development proposed by the EPA action plan is to list PFOA and PFAS as hazardous substances” pursuant to section 102 of CERCLA. The last time EPA used its section 102 authority to add a hazardous  substances was 1989.

After listing, EPA would have a lower threshold for using its removal authority as it will only have to show there is a release of PFOA or PFOA and would be able to seek cost recovery.  Listing PFOA and PFAS as CERCLA hazardous substances will would certainly expand the universe of potentially responsible parties such as municipalities that owned or operated closed landfills that accepted wastes containing PFAS or POTWs that disposed of sludge containing PFAS.

Listing could lead to EPA reopen previously remediated sites where PFAS may not have been investigated and EPA has reason to believe that prior remedial efforts did not address a risk of PFAS contamination. EPA may also use five-year reviews to require investigation of PFASs.

Of course, once PFOA and PFOS are listed as hazardous substance, public water suppliers and municipal landfills as well as private parties will be able to seek cost recovery or contribution for their response costs. Currently, these parties must rely on common law remedies or state statutory authorities if the response work was performed in one of the few states that have listed PFAS as a hazardous substance under the state superfund law.

EPA also plans to establish interim groundwater cleanup recommendations for PFAS-contaminated sites. Presumably, state standards could serve as “applicable or relevant and appropriate requirements” (ARAR) which means PRPs could be faced with different cleanup standards in different states.

Some states are now requiring that parties to sample for PFAS during remedial investigations at regulated sites even if there is no evidence that PFAS compounds were used or released at the site.

Toxic Release Inventory

Under the Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), certain facilities in different industry sectors must report annually how much of each chemical is released to the environment and/or managed through recycling energy recovery and treatment. The information submitted by facilities is compiled in the Toxics Release Inventory.

Currently, no PFAS chemicals are included on the list of chemicals required to report to TRI. However, the EPA is considering whether to add PFAS chemicals.

Like Asbestos, PFAS were once touted as a miracle substance. It now seems that this former miracle substance will also create enormous liability for manufacturers and users of these products.

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