The Legal Intelligencer
By Matthew Wood and Mackenzie Moyer
On Feb. 26, the Environmental Quality Board (EQB) took another meaningful step toward finalizing Pennsylvania’s first state-established maximum contaminant levels (MCLs) for regulating contaminants in drinking water. On that date, the EQB published a proposed rule to amend 25 Pa. Code Ch. 109 (Safe Drinking Water) to establish MCLs for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two of the most common PFAS. PFOA and PFOS are just two of a group of thousands of PFAS, manmade chemicals used in various consumer, commercial and industrial manufacturing processes since the 1940s. PFAS have commonly been used to imbue products with water-, stain-, and heat-resistant properties and as ingredients in aqueous film forming foams (AFFF) used to extinguish flammable liquid fires (e.g., those that might occur on airports or military bases). PFAS do not break down naturally in the environment and have thus been called “forever chemicals.” Due to these properties and their ubiquitous nature, PFAS have been found in various environmental media, such as groundwater (including drinking water), plants, animals, and in humans, and evidence suggests that PFAS exposure can lead to adverse health effects. In the absence of definitive federal action to regulate PFAS, many states, including Pennsylvania, have in recent years taken steps to investigate, understand, and regulate PFAS.
Pennsylvania’s proposed rule is the result of years of investigation and evaluation. In 2018, Gov. Tom Wolf established by executive order (2018-08) Pennsylvania’s PFAS action team, which he tasked with the broad functions of, among other things, ensuring safe drinking water and managing environmental PFAS contamination. In June 2019, the Pennsylvania Department of Environmental Protection (PADEP) began sampling public drinking water systems within a half mile of potential PFAS sources such as manufacturing, fire training and military facilities. That sampling effort concluded in March 2021 and the final results were posted to PADEP’s PFAS webpage in June 2021.
Informed by those sampling results and other factors, the proposed rule sets maximum contaminant level goals (MCLGs) and MCLs for PFOA and PFOS. The proposed MCLGs— nonenforceable levels developed solely from health effects data that act as a starting point for determining MCLs—are 8 parts per trillion (ppt) for PFOA and 14 ppt for PFOS. The proposed rule sets MCLs—developed by considering factors outside of health effects data, including technical limitations and costs that could affect the feasibility of achieving the MCLGs—of 14 ppt for PFOA and 18 ppt for PFOS. As part of the MCL development process, PADEP considered other PFAS—PFNA, PFHxS, PFHpA, PFBS, and HFPO-DA—but decided not to propose MCLs for these at this time, primarily due to a lack of occurrence data and incomplete cost/benefit data and analysis. If finalized, Pennsylvania’s MCLs will apply to all 3,117 community, nontransient, noncommunity, bottled, vended, retail, and bulk water systems in the commonwealth and potentially affect other PADEP programs (e.g., groundwater cleanups under Act 2).
Pennsylvania’s proposed PFOA and PFOS MCLs are similar in concentration to their counterparts established in other states. For example, in 2018, New Jersey became the first state to adopt a drinking water regulation for any PFAS when it set a MCL of 13 ppt for perfluorononanoic acid (PFNA). New Jersey subsequently established MCLs for PFOA (14 ppt) and PFOS (13 ppt) and has designated all three of these PFAS as hazardous substances under state law. Other states, including Massachusetts, Michigan, New Hampshire, New York and Vermont have all established MCLs for one or more PFAS at similar concentrations.
Among the reasons states developed their own PFAS MCLs is the federal government’s delay to do so at the national level. Currently, the only federal drinking water guidance for PFAS is a Health Advisory Level (HAL) of 70 ppt for PFOA and PFOS combined, set by the U.S. Environmental Protection Agency (EPA) in 2016. EPA’s HAL is intended to identify the concentration of PFOA and PFOS in drinking water at or below which adverse health effects are not expected to occur over a lifetime of exposure. The HAL, however, it is not an enforceable standard and is considered by critics to be out-of-date and not sufficiently protective. In Pennsylvania, EPA’s HAL has served as the standard at which exceedances require public water systems to take certain actions, e.g., monitoring, notifying consumers and installing treatment technologies.
While states continue to establish their own PFAS regulations, the federal government has charted a path to address PFAS at the national level. On Oct. 18, 2021, the EPA announced its “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024,” (roadmap) which highlights EPA’s “whole-of-agency” approach to addressing the PFAS lifecycle, following three central directives: Research, restrict and remediate. The roadmap is available here. Among its goals, the EPA determined in March 2021 to regulate PFOA and PFOS and is currently in the process of developing National Primary Drinking Water Regulations for each, intending to publish a proposed rule in fall 2022 and a final rule in fall 2023. Consistent with the roadmap, the EPA also published the fifth unregulated contaminant monitoring rule (UCMR 5), which will require sampling for 29 PFAS in certain public water systems between 2023 and 2025. The EPA believes that the sampling data will “ensure science-based decision-making and help prioritize protection of disadvantaged communities.” See 86 Fed. Reg. 73131, 73132 (Dec. 27, 2021), available here. Under the roadmap, the EPA also intends to designate PFOA and PFOS as hazardous substances under CERCLA and build the technical foundation to address PFAS in air emissions.
EQB is currently accepting written comments on Pennsylvania’s proposed rule, and from March 21 through March 25, held five virtual public hearings on the proposed rule. Commenters ranged from members of environmental groups, to private citizens, to state and federal representatives. While many of the commenters supported PADEP’s actions toward establishing PFOA and PFOS drinking water regulations, most thought that PADEP’s efforts fell short, coalescing around three main points. First, because the proposed rule does not regulate private water wells throughout the commonwealth, a significant portion of Pennsylvania’s population will continue to be harmed by PFAS. Second, commenters believe that PADEP must regulate the PFAS “family” of constituents beyond PFOA and PFOS. Finally, many commenters criticized the MCLs as not low enough. Although opinions varied, the most consistent comment was that the MCLs should be no greater than 6 ppt for PFOA, 5 ppt for PFOS, and 13 ppt for PFOA and PFOS combined. Interested parties may submit written comments through April 27, using the methods outlined in PADEP’s announcement of the proposed rule.
When the proposed rule is finalized, Pennsylvania will have promulgated its first state-level MCLs and will become one of a handful of states outpacing the federal government’s efforts to regulate PFAS in drinking water. The proposed rule will set initial compliance monitoring requirements beginning Jan. 1, 2024, for community and nontransient noncommunity water systems serving a population greater than 350 persons and all bottled, vended, retail and bulk systems, and Jan. 1, 2025, for systems serving fewer than 350 persons.
For the full article, click here.
Reprinted with permission from the April 7, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved.
