The Legal Intelligencer
(by Matt Wood)
Over the past few months, Governor Tom Wolf’s administration, the Pennsylvania Department of Environmental Protection (DEP), and other governmental stakeholders, have made strides toward better understanding and addressing contamination of state waters with perfluoroalkyl and polyfluoroalkyl substances (PFAS). Specifically, recent sampling efforts of certain public water systems (PWSs) and surface waters have resulted in new information about the prevalence of PFAS in state waters and have informed DEP actions toward regulating certain PFAS compounds.
Public Water Source Sampling
On June 3, 2021, the Wolf administration released sampling results from an approximately two-year long statewide effort to sample PWSs for certain PFAS compounds. PFAS are a group of manmade chemicals used in numerous industrial, commercial, and consumer products. Prominent examples include non-stick and waterproofing applications and as chemical components of fire fighting foams. In recent years, PFAS chemicals have been discovered in the environment, including in groundwater (some used as drinking water sources), and in humans, plants, and animals and some studies suggest that PFAS can negatively affect human health. Because they do not break down naturally in the environment (including in the human body), they are commonly called “forever” chemicals.
In September 2018, Governor Wolf created via Executive Order a PFAS Action Team to investigate and address potential PFAS concerns in the Commonwealth. The Action Team, made up of agency heads from multiple Pennsylvania agencies, subsequently developed a plan to sample PWSs for PFAS. Specifically, the Action Team identified PWSs within a half-mile of potential PFAS sources (such as military, fire training, and manufacturing facilities).
In June 2019, the DEP started sampling these PWSs (as well as other locations outside of the half-mile radius of potential sources to establish a baseline). The initial round of sampling was analyzed for only six PFAS compounds, but the two subsequent rounds (conducted in 2020 and 2021) were analyzed for 18 PFAS compounds using an updated method (Environmental Protection Agency Method 537.1, updated in November 2018). During its 2020 and 2021 mobilizations, DEP also resampled the PWSs it had previously sampled in 2019 and analyzed those samples using the updated method.
In total, DEP collected 412 total samples and from those, only eight of the 18 PFAS compounds analyzed were found at sampled sites. They were: PFOA, PFOS, PFNA, PFHxS, PFHpA, PFBS, Perfluorohexanoic acid (PFHxA), and Perfluoroundecanoic acid (PFUnA), with PFOA and PFOS being the most commonly detected (at 112 sites and 103 sites, respectively). Although PFAS compounds remain unregulated at the federal level (EPA is currently in the process of developing a federal drinking water standard for both PFOA and PFOS), EPA did establish in 2016 a combined drinking water Health Advisory Level (HAL) for PFOA and PFOS of 70 parts per trillion (ppt). The purpose of the PFOA/PFOS HAL, which is not an enforceable standard, is to set a concentration at or below which EPA believes health effects are not expected to occur over a lifetime of exposure, meaning it is intended to be protective of consumers, including sensitive populations.
In only two of the sampled locations, State of the Art, Inc. in Centre County, and Saegertown Borough in Crawford County, did the combined PFOA/PFOS concentrations exceed EPA’s combined PFOA/PFOS HAL. Considering the totality of the sampling results, the Wolf administration concluded that PFAS contamination is not widespread across the Commonwealth. This conclusion, however, did not address broader stakeholder concerns that EPA’s PFOA/PFOS HAS is inadequate to protect public health and should be updated. Such concerns, and in the absence of federal action to address PFAS, have driven other states to conduct their own investigations of PFAS compounds over the past few years and promulgate regulatory standards for PFOA and PFOS far lower than the HAL, as well as for other PFAS compounds. Examples include: New Jersey (PFOA – 14 ppt; PFOS – 13 ppt; and PFNA – 13 ppt), New Hampshire (PFOA – 12 ppt; PFOS – 15 ppt; PFNA – 11 ppt; and PFHxS – 18 ppt), New York (PFOA – 10 ppt and PFOS – 10 ppt), and Michigan (PFOA – 10 ppt; PFOS – 16 ppt; PFNA – 6 ppt; PFHxS – 51 ppt; PFBS – 420 ppt; HFPO-DA – 370 ppt; and PFHxA – 400,000 ppt).
DEP Actions toward Regulating PFAS
Since DEP released its PFAS sampling data, it has taken substantive steps toward regulating certain PFAS compounds. First, at a June 15, 2021 Environmental Quality Board (EQB) meeting, DEP rejected a Delaware Riverkeeper Network petition to establish a maximum contaminant level (MCL) for PFOA of 1 ppt (or no greater than 6 ppt), finding that the recommendation did not take into account all of the factors DEP must consider to establish a PFOA MCL. Instead, at DEP’s recommendation, the EQB voted to proceed with a proposed rulemaking to establish a MCL for PFOA based on available data, studies, and science, and considering factors such as health effects, technical limitations, and costs.
During a July 29, 2021 presentation to the Public Water System Technical Assistance Center (TAC; which advises and directs DEP on various issues, including regulations governing PWSs), DEP proposed establishing a PFOA MCL of 14 ppt and a PFOS MCL of 18 ppt. Referencing supporting evidence, the agency found, among other things, that the proposed MCLs (1) are technically feasible; (2) increase public health protection by 90 percent for PFOA and 93 percent for PFOS; (3) strike a balance between public health protection and costs; and (4) are within the range and same magnitude as other state standards. DEP also proposed not establishing at this time MCLs for PFNA, PFHxS, PFHpA, PFBS, and HFPO-DA, primarily citing a lack of occurrence data. Although DEP is progressing toward promulgating MCLs for two PFAS compounds (the first time DEP has taken such a step for any chemicals), until the standards are finalized via rulemaking, EPA’s HAL remains the unenforceable reference point for PFOA and PFOS in drinking water in Pennsylvania.
Outside of these efforts, the PFAS Action Team has taken other steps to address PFAS in Pennsylvania. These include: (1) proposing soil and groundwater medium-specific concentrations for PFOA, PFOS, and PFBS (the rule establishing the MSCs is currently undergoing final review; the proposed MSCs are available here); (2) working to assist communities and private well owners in the event PFOA/PFOS contamination exceeds EPA’s HAL (70 ppt); (3) developing procedures for identifying and assessing commercial/industrial properties that have contaminated private and/or public drinking water sources; and (4) conducting surface water sampling to inform the development and implementation of a statewide monitoring strategy, water quality standards, assessment methods and/or permitting requirements (discussed briefly below). DEP’s final public drinking water sampling results are available here and its Pre-Draft Proposed PFAS Rule Presentation and related materials are available here.
Surface Water Sampling
In March 2021, the United States Geological Service (USGS) released the results of a collaborative sampling effort with DEP of certain surface waters in the Commonwealth. The samples collected raw, untreated surface water from 178 DEP Surface Water Quality Network (WQN) sites and were analyzed for 33 PFAS chemicals and 18 PFAS precursors. Although analysis detected the presence of PFAS in some of the discrete samples, the detections were below EPA’s PFOA/PFOS HAL (note that because this sampling effort collected raw, untreated surface water and not finished drinking water, and used different laboratory methods, the HAL is not directly applicable). A summary of the USGS/DEP surface water sampling can be found here, and the surface water sampling data itself can be found here.
Although Pennsylvania has not moved as quickly as other states to regulate PFAS compounds, the actions discussed above mark significant progress in that direction. Interested parties can likely expect further announcements and developments in the coming months. Babst Calland’s environmental remediation attorneys will continue to track the PFAS developments in Pennsylvania and are available to assist you with PFAS-related matters. For more information on this and other remediation matters, please contact Matthew C. Wood at (412) 394-6583 or mwood@babstcalland.com, or any of our other attorneys in this practice.
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Reprinted with permission from the August 5, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.