On November 16, the Pennsylvania Environmental Quality Board (“EQB”) voted to approve the Pennsylvania Department of Environmental Protection’s (“PADEP”) proposed rule to set binding regulatory standards, known as maximum contaminant limits (“MCLs”) for PFOA and PFOS in drinking water.  As discussed in an earlier post, the proposed rule would set those limits at 14 parts per trillion (ppt) for PFOA and 18 ppt for PFOA – comparatively much lower than the current EPA health advisory level of 70 ppt combined (which is likely to be replaced by a federal MCL of a lower magnitude in late 2023 or early 2024).

PADEP’s proposed rule would apply to all community, nontransient, noncommunity, and bottled, vended retail, and bulk water systems in the Commonwealth and would require quarterly monitoring at each entry point (unless waivers or exemptions apply) during an initial one-year period, with repeat quarterly monitoring if at least one of PFOA or PFOS is detected above its minimum reporting limit (“MRL”) of 5 ppt. (Where there are no detections above the MRL during the first year, repeat monitoring is more limited.) If a system is out of compliance with either respective PFOA or PFOS MCL (14 or 18 ppt), the system would be required to provide public notice and to use appropriate treatment technologies to achieve compliance.

PADEP anticipates publishing the proposed rule in 2022 with a 60-day public comment period, and at least five public hearings to be scheduled statewide.  While the rule as proposed may change before it is finalized, affected water systems should begin to prepare, at least for the additional costs of initial quarterly monitoring for PFOA and PFOS.

Materials from the EQB’s November 16, 2021 meeting are available at the links below:

Proposed Rulemaking: Safe Drinking Water PFAS MCL Rule (25 Pa. Code Chapter 109)

New Pennsylvania Department of Environmental of Protection (“PADEP”) regulations that include new cleanup standards for three per- and polyfluoroalkyl substances (PFAS) were published in the Pennsylvania Bulletin on Saturday, November 20, 2021, and are now effective and available for remediation under the Pennsylvania Land Recycling and Environmental Remediation Standards Act (“Act 2”).

We have discussed these new cleanup standards in prior posts.  This regulatory revision includes the following new groundwater and soil medium-specific concentration (“MSC”) for three PFAS – Perfluorooctanoic Acid (PFOA), Perfluorooctane Sulfonate (PFOS), and Perfluorobutane Sulfonate (PFBS):

Substance Soil Groundwater
PFOA 4.4 mg/kg (residential

64 mg/kg (non-residential)

0.07 μg/L
PFOS 4.4 mg/kg (residential

64 mg/kg (non-residential)

0.07 μg/L
PFBS 66 mg/kg (residential)

960 mg/kg (non-residential)

10 μg/L (residential)

29 μg/L (non-residential)

This past August, EPA published Draft Method 1633 – Analysis of Per- and Polyfluoroalkyl Substances (“PFAS”) in Aqueous, Solid, Biosolids, and Tissue Samples by LC-MS/MS.  Once, finalized, this single laboratory validated method will be available for 40 PFAS compounds (including Perfluorooctanesulfonic acid (PFOS), Perfluorononanoic acid (PFNA), Perfluorooctanoic acid (PFOA), and Perfluorobutanesulfonic acid (PFBS)) in wastewater, surface water, groundwater, soil, biosolids, sediment, landfill leachate, and fish tissue.  Note, per EPA, this method will not be required for Clean Water Act compliance monitoring until it has been proposed and promulgated through rulemaking, however, EPA encourages laboratories, regulatory authorities, and other interested parties to review and begin using the draft method, with the understanding that it is subject to revision.  The Department of Defense, in collaboration with the Office of Water and Office of Land and Emergency Management, anticipates completing a multi-laboratory validation study of the procedure in 2022, the results of which will be used to finalize the method and to add formal performance criteria.

This method, once finalized, will be useful for entities who must measure for PFAS-related compliance or monitoring obligations in National Pollutant Discharge Elimination System (NPDES) permits.  As discussed by EPA in its PFAS FAQs, while many laboratories use EPA Methods 537.1 and 533 to analyze for NPDES purposes, neither method is officially approved by EPA for use outside of the drinking water context.

EPA’s draft method will also be useful for any person investigating or remediating PFOA, PFOS, or PFBS in groundwater, soil, surface water, biosolids, sediment, landfill leachate, or fish tissue

In September, EPA set forth its latest draft plan for setting guidelines for PFAS limitations in industrial wastewater in certain industries, and October brought public comments on the draft.  Among EPA’s next steps in its September 2021 Preliminary Effluent Guidelines Program Plan 15 (Preliminary Plan 15) are:

  • a rulemaking process to set new limitations on PFAS discharges in effluent in the Organic Chemicals, Plastics, and Synthetic Fibers industry category, for PFAS manufacturers (but not yet for PFAS formulators, described by EPA as entities that use PFAS feedstocks to formulate other products);
  • a rulemaking process to set new limitations on PFAS discharges in effluent for chromium electroplating facilities in the Metal Finishing industry category, because EPA’s review indicates that PFAS has been used in mist and fume suppressants and may be present in their effluent;
  • the commencement of detailed studies of PFAS discharges in the Landfills and Textile Mills industry categories; and
  • continued evaluation (but not yet a plan for rulemaking) of the potential for legacy PFAS discharges from sources in the Pulp, Paper, and Paperboard industry sector and from the use of aqueous film-forming foams (AFFF) for firefighting at commercial airports.

Public comments on Preliminary Plan 15 were submitted in October 2021 and reflected, among other things, concerns of some in the Landfills sector regarding the economic feasibility of pretreatment removal of PFAS from landfill leachate; the need for fully validated analytical methodologies and uniform sampling techniques for effluent sampling; concerns about uncertainties in the existing data upon which EPA has relied for Preliminary Plan 15; and industry concerns about EPA evaluating all or multiple PFAS together categorically, rather than individually or in smaller like-kind classes.

The Final Plan 15 will be issued in fall 2022.  According to its recently issued PFAS Strategic Roadmap, EPA expects to publish the proposed rule for PFAS manufacturers in summer 2023 and for electroplaters in summer 2024.  EPA anticipates that its detailed studies of PFAS discharges in the Landfills and Textile Mills industry categories, as well as the Electrical and Electronic Components sector, will be completed by fall 2022 to inform a decision on future rulemaking by the end of 2022.  Those in the relevant sectors – and those in the sectors that EPA is continuing to study – should begin planning now to get involved in the regulatory process, and to meet whatever new limitations result.

On September 23, 2021, the Pennsylvania Independent Regulatory Review Commission (IRRC) approved a final form rulemaking that revises the Pennsylvania Department of Environmental Protection’s (PADEP) regulations that implement that Land Recycling and Environmental Remediation Standards Act (Act 2).

As we discussed in a previous post, this regulatory revision includes the following new groundwater and soil medium-specific concentrations (MSCs) for three per- and polyfluoroalkyl substances (PFAS) – Perfluorooctanoic Acid (PFOA), Perfluorooctane Sulfonate (PFOS), and Perfluorobutane Sulfonate (PFBS):

Substance Soil Groundwater
PFOA 4.4 mg/kg (residential)

64 mg/kg (non-residential)

0.07 ug/L
PFOS 4.4 mg/kg (residential)

64 mg/kg (non-residential)

0.07 ug/L
PFBS 66 mg/kg (residential)

960 mg/kg (non-residential)

10 ug/L (residential)

29 ug/L (non-residential)

Following IRRC approval, the revisions to Act 2 regulations will be reviewed by the Office of Attorney General (OAG) and then, if approved by OAG, will be submitted to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.  The new Act 2 regulations will become effective upon publication.

The process to revise regulations in Pennsylvania is often long and involved, and the Pennsylvania Department of Environmental Protection’s (PADEP) revision to its Act 2 Chapter 250 regulations to incorporate cleanup standards for three per- and polyfluoroalkyl substances (PFAS) has proved to be no exception.  PADEP first published its regulatory proposal in the Pennsylvania Bulletin on February 15, 2020.   Finally, earlier this summer on June 15, 2021, the Pennsylvania Environmental Quality Board (EQB) voted to adopt PADEP’s final regulations.  Now, on September 23, 2021, the Pennsylvania Independent Regulatory Review Commission (IRRC) will hold a public meeting for its consideration and vote on the PADEP’s  proposed update to its Act 2 regulations.

Should IRRC vote to approve the update to Act 2 regulations, IRRC will issue an order indicating its approval, and PADEP will then submit the regulatory package to the Pennsylvania Office of Attorney General (OAG) for legal review.  If approved by OAG, the final approved regulation will be published in the Pennsylvania Bulletin.  The regulation becomes effective, and compliance is required with the new regulation, on the date it is published unless another date is specified by PADEP.   PADEP indicated in its Regulatory Analysis Form that these Act 2 regulations will become effective upon publication in the Pennsylvania Bulletin.

This regulatory update includes the following new statewide health standards for soil and groundwater medium-specific concentrations (MSC) for PFOS, PFOA, and PFBS:

Substance Soil Groundwater
PFOA 4.4 mg/kg (residential)

64 mg/kg (non-residential)

0.07 ug/L
PFOS 4.4 mg/kg (residential)

64 mg/kg (non-residential)

0.07 ug/L
PFBS 66 mg/kg (residential)

960 mg/kg (non-residential)

10 ug/L (residential)

29 ug/L (non-residential)

Under the groundwater MSCs, PADEP notes in Appendix A that the PFOA and PFOS listed values are for individual or total combined purposes.  The new PFOS and PFOA groundwater standards are based on EPA’s Drinking Water Health Advisory Level of 70 parts per trillion.  As explained by PADEP in its Response to Comments document (see Comment 23), under Act 2 an EPA HAL (or maximum contaminant level (MCL)) becomes an Act 2 MSC immediately upon publication by EPA.  Given that, while PADEP is now formally adopting these standards into Act 2 regulations, they have been applicable as groundwater cleanup standards since EPA published the PFOA/PFOS HAL in May 2016.  Note that PADEP is also in the early stages of a rulemaking process to set drinking water MCLs for PFOA and PFOS, as we posted here.

Finally, as we discussed in a previous post, PADEP’s update to the Act 2 regulations does not designate any of these three PFAS as “hazardous substances” under the Pennsylvania Hazardous Sites Cleanup Act (HSCA). That will require official designation by either PADEP or the U.S. Environmental Protection Agency under HSCA or Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

PADEP’s proposed update to the Act 2 regulations can be obtained at the following links:

Regulatory Analysis Form.

At its July 29, 2021 meeting, the Pennsylvania Department of Environmental Protection (“Department”)’s Public Water System Technical Assistance Center (TAC) Board voted to recommend that the Department proceed with a draft proposed rulemaking to set maximum contaminant levels (MCLs) in drinking water for certain PFAS compounds.  The Department has proposed drinking water levels of 14 parts per trillion (ppt) for PFOA and 18 ppt for PFOS, which would put Pennsylvania roughly in the middle, in terms of stringency, of the states that have regulated those two compounds in drinking water.

In its presentation to the TAC Board, the Department recommended the MCLs for PFOA and PFOS and  outlined its analysis, which included derivation of a reference dose for all but one of the PFAS compounds at issue (PFHpA), evaluation of the recommendations of Drexel University’s Drexel PFAS Advisory Group as to maximum contaminant level goals (MCLG) for each PFAS substance, completion of a PFAS sampling plan to generate statewide occurrence data, and consideration of other factors required by federal and Pennsylvania law (including technical limitations such as available analytical methods and detection and reporting limits, treatability and available treatment technologies, and costs and benefits of the regulation).  The Department noted that it was not at this time proposing MCLs for other PFAS substances, namely PFNA, PFHxS, PFHpA, PFBS, and HFPO-DA, due to several factors: a lack of occurrence data above the MCLG, incomplete cost/benefit data and analysis, lack of evidence on toxicity (for PFHpA), and lack of treatability data (for HFPO-DA).

The TAC Board’s recommendation is another step on the long regulatory pathway toward Pennsylvania’s adoption of MCLs for PFOA and PFOS.  Stay tuned for more.

On July 22, 2021 the California Office of Environmental Health Hazard Assessment (“OEHHA”) released a Draft Technical Support Document proposing a public health goal (“PHG”) of 0.007 parts per trillion (ppt) for PFOA and 1 ppt for PFOS.  OEHHA also proposed noncancer health-protective concentrations of 3 ppt for PFOA and 2 ppt for PFOS.  The draft PHGs form the basis for development of California’s MCLs, but MCLs must consider economic and technical feasibility in addition to health impacts.  The public comment period for the draft PHGs began on July 30, 2021 and ends September 28, 2021. In August 2019, the State Water Board lowered the drinking water notification levels in California for PFOA and PFOS to 5.1 ppt and 6.5 ppt, respectively.  In February 2020, the State Water Board lowered the response levels for PFOA and PFOS from 70 ppt combined to 10 ppt for PFOA and 40 ppt for PFOS. Whether the PHGs will result in lowering California’s MCLs remains to be seen.

The California State Water Resources Control Board (“State Water Board”) has issued an Order to approximately 160 bulk fuel storage terminals and refineries in California requiring implementation of a PFAS site investigation.  The State Water Board identified the recipients of the Order on the basis that they had stored and/or used materials that may contain PFAS such as AFFF for fire suppression, fire training, and flammable vapor suppression.  In addition, the Order notes that petroleum-product storage tanks may use a floating layer of cereal grains treated with PFAS on top of the liquid surface to reduce evaporation loss, and facilities storing hydrocarbon fuels may prevent evaporation through use of an aqueous layer containing PFAS.

The recipients of the Order are required to identify the areas where PFAS-containing materials were stored, used and/or disposed, and implement an investigation of soil and groundwater in those areas in addition to sampling of stormwater and wastewater treatment plant influent and effluent where applicable.  Work Plans were due by June 2, 2021.  California has drinking water notification levels for PFOA of 5.1 ppt and PFOS of 6.5 ppt and response levels for PFOA of 10 ppt and PFOS of 40 ppt.

According to the State Water Board, the Order to bulk fuel storage terminals and refineries to conduct a PFAS site investigation is part of a statewide effort to evaluate PFAS groundwater and surface water impacts and to obtain a preliminary understanding of PFAS concentrations at facilities across the state.  The State Water Board has previously directed other dischargers identified as potential PFAS sources to perform PFAS testing. California is assembling a database of PFAS results from a variety of sources statewide that currently includes data from water system wells, military cleanup sites, other cleanup program sites, airports, industrial facilities, landfills, and wastewater treatment plants.

The results of the PFAS investigations at the bulk terminals and refineries should provide interesting data on the extent and variability of PFAS contamination from AFFF and the other PFAS-containing materials handled at these bulk terminals and refineries. The data could also identify other sites not within the scope of the Order that are a source of PFAS.  It remains to be seen whether other states will follow California’s lead and require state-wide PFAS investigations at bulk terminals, refineries and other sites suspected to be sources of PFAS.

On March 24, 2021, the Pennsylvania Department of Environmental Protection (PADEP) announced that it issued an National Pollutant Discharge Elimination System (NPDES) permit to the Biddle Air National Guard Base (ANGB) (formerly the Horsham Air Guard Station) containing discharge limits of 70 parts per trillion (ppt) for the combined concentration of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), two common per- and polyfluoroalkyl substances (PFAS).  The permit authorizes the discharge of treated stormwater and groundwater from the site.  The site has long been the subject of investigation for volatile organic compounds.  In mid-2014, PFOA and PFOS were also found in drinking water wells near the site, and the Navy and Air National Guard, under United States Environmental Protection Agency (USEPA) oversight, continue to investigate PFAS in groundwater at and near the site.

This imposition of discharge limits is notable because PADEP has not yet promulgated a water quality standard for any PFAS, including PFOS and PFOA, and has not established effluent limits to achieve any such standard.  Based on its 2021 regulatory agenda, it is not clear whether DEP intends to promulgate any standard this year.  Under typical circumstances, a PADEP NPDES permit incorporates effluent limitations for specific parameters promulgated under Chapter 93 of PADEP regulations.

PADEP permits may also incorporate a general “narrative” criteria, which require that water not contain concentrations or amounts of substances sufficient to be “inimical or harmful” to the water uses to be protected or to human, animal, plant, or aquatic life. 25 Pa. Code § 93.6. The narrative criteria are often applied to floating materials, such as oil, grease, and scum.

Here, absent a promulgated water quality standard for either PFOA or PFOS, PADEP explained in its permit fact sheet that it relied on the general narrative water quality regulatory criteria to justify its PFOA and PFOS discharge limits in the ANGB NPDES permit.  Per section 93.6(b), “specific substances to be controlled include, but are not limited to, floating materials….”  25 Pa. Code § 93.6(b).  Here the narrative criteria are being used to set effluent limits for specific pollutants for which DEP has not yet promulgated an effluent standard.

The Horsham Air Guard Station appealed the Department’s NPDES issuance.  We will monitor that case as it progresses before the Environmental Hearing Board.