EPA Catches Up On PFAS

If you haven’t heard of per-and polyfluoroalkyl substances (PFAS), you likely will soon.  Like DDT, PCBs, asbestos, and MTBE before it, PFAS are a class of chemicals that have been used in a wide variety of commercial and industrial products, only to have potential adverse environmental and human health concerns emerge decades later.  PFAS have been used in products such as non-stick cookware coatings, fabric protectants and fire-fighting foam since the 1940s.  Unfortunately, recent groundwater sampling data from across the country indicates PFAS are persistent and mobile in the environment.  Health effects studies purportedly indicate that continued exposure above certain levels may lead to adverse effects.  Dozens of lawsuits have been filed against PFAS manufacturers and users by various plaintiffs, including municipal water suppliers and citizen consumers, alleging injury and damages from exposure to PFAS.  Over 80 cases have been consolidated in District Court in South Carolina, and the filings continue.  Recently, a suit was filed in District Court in Arizona relating to PFAS contamination at Davis-Monthan Air Force Base.  The military was one of the primary users of fire-fighting foams, and has begin investigating hundreds of military sites nationwide in the last few years to determine the scope of the PFAS groundwater contamination problem.

As emerging contaminants, PFAS do not currently have a maximum contaminant level under the Safe Drinking Water Act – although EPA set a guidance level in 2016 of 70 parts per trillion – and are not yet designated as hazardous substances under CERCLA, leaving them in a regulatory gray area regarding statutory enforcement authorities.  Amidst the numerous ongoing investigations and lawsuits, and scattered state actions setting PFAS cleanup levels, EPA has come under increasing pressure to address PFAS at the federal level.  On February 14, 2019, EPA announced its PFAS action plan.  (https://www.epa.gov/sites/production/files/2019-02/documents/pfas_action_plan_021319_508compliant_1.pdf).  Two key actions in the plan are:  (1) EPA will begin the regulatory process to propose national drinking water standards for two classes of PFAS:  perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS); and (2) EPA will begin the regulatory development process to designate PFOA and PFOS as CERCLA hazardous substances.  When completed, this will greatly strengthen the enforcement mechanisms available to government and give private parties a powerful additional tool.  In the meantime, litigation and state-level regulatory development aimed at addressing PFAS contamination will likely gain in momentum throughout 2019 and beyond as environmental professionals work to better understand the issues and risks presented by these emerging contaminants.