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.

The march toward regulation of PFAS in Pennsylvania continues (see our recent post on statewide public water system sampling results), with the release of final data from sampling conducted in September 2019 of surface waters throughout the Commonwealth.  The study, a collaboration among the U.S. Geological Service (“USGS”), the Susquehanna River Basin Commission, and the Pennsylvania Department of Environmental Protection (“PADEP”), collected and analyzed over 200 grab samples collected from 178 PADEP Water Quality Network station locations, as well as passive samples collected at 18 locations over a period of about one month.  The results reflect raw surface water concentrations for a set of 33 PFAS chemicals, including PFOA, PFOS, and PFBS, plus 19 oxidizable PFAS precursors.

According to the sampling results, Total PFOS+PFOA generally fell within a range of non-detect to 34 parts per trillion (“ppt”) in grab samples; for comparison’s sake, the U.S. EPA’s current health advisory level, or HAL, for Total PFOS+PFOA in drinking water is 70 ppt.  One passive sample, collected at a location in Neshaminy Creek, exceeded the EPA drinking water HAL for PFOA+PFOS, coming in at 212 ppt.

In its summary of the results, PADEP notes distinctions between its raw surface water sampling analysis and analysis in finished drinking water (aside from the fact that finished drinking water has had some treatment to remove contaminants, PADEP points out that the lab analytical method for PFAS differs for raw surface water and drinking water).  However, the agency’s summary also posits that the results illustrate the sensitivity of the passive sampling method and its ability to detect chemicals that grab sample analysis might miss.

Stay tuned for more, as results from follow-up monthly sampling are still to come. But the identification of the presence of various PFAS chemicals in surface waters throughout Pennsylvania, even at levels below the EPA’s HAL, could be another line of evidence that PADEP relies upon to support the development of PFAS regulatory standards in multiple media.

The California Office of Environmental Health Hazard Assessment (OEHHA) is expanding its review of potential substances to add to its Proposition 65 list of chemicals that cause cancer.

Earlier this year, the state announced it intended to add perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) to the list. After the public comment periods ended for those two substances, OEHHA announced it also intended to add four other chemicals: PFDA, PFHxS, PFNA, and PFUnDA.

The chemicals will be reviewed by two different committees of OEHHA’s Science Advisory Board.

What does this mean?

The chemicals in question are considered perfluoroalkyl and polyfluoroalkyl substances (PFAS) and are already on California’s list of chemicals believed to cause reproductive harm. The proposed addition of the chemicals to the cancer list could have significant implications for businesses doing business in California, though.

For years, we have seen law firms and environmental groups actively pursue Prop 65 notice violations under the “private Attorney General” provisions of the enabling statute that allows private individuals to seek enforcement.

To avoid the costs and publicity of such an action, companies should proactively consult with counsel to determine what steps they may want to take.

What are these chemicals?

Previously referred to as perfluorochemicals (PFCs), they are man-made chemicals that may affect growth and development, reproduction, thyroid function and the immune system, according to studies on laboratory animals cited by the Centers for Disease Control and Prevention.

The chemicals were used to coat products that need to resist heat, oil, stains, grease, and water. They were commonly found on clothing, furniture, adhesives, food packaging, heat-resistant non-stick cooking surfaces, and the insulation of electrical wire.

Though these chemicals are no longer manufactured in the United States, they are still sold internationally and may be in products that are sold in California.

What is Prop 65?

Also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, Prop 65 requires businesses to warn Californians about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm. The state regularly updates the list.

What is next?

It will likely take up to a year for state officials to review all of the new chemicals. If the substances are listed, Prop 65 notices will be required on the products containing the chemicals in addition to prior reproductive toxicity warnings.  Companies should consider their supply chain now and determine whether any disclosures are necessary. If so, recent changes in the form of Prop 65 disclosures need to be considered. Additionally, companies may wish to provide input into the consideration of the chemicals.