Regulatory attention is focused on the presence of certain man-made substances in the environment at trace levels (parts per trillion or ppt). The science regarding whether these trace levels cause harm is not well developed. However, there is growing awareness that some of these substances are detectable in nearly all U.S. blood samples, and they are commonly present in drinking water resources. The drive to apply the “precautionary principle” to these concerns by moving to regulate the substances to low parts per trillion, ahead of the science on exposure and dose, is potentially disruptive to communities and businesses because the substances involved are so ubiquitous at the levels set or proposed.

Primary among the substances of emerging concern are PFAS, per- and polyfluoroalkyl substances, a group of chemicals that have been widely used since the 1940s. The PFAS term includes a wide array of substances with different structures and properties, but all involving some number of carbon-fluorine bonds — said to be among the strongest of chemical bonds. Hundreds of these substances have been incorporated into a variety of products, such as firefighting foams, stain and water repellent fabrics, product packaging such as microwave popcorn bags, non-stick cookware, personal care products such as dental floss, adhesives, latex paint, metal plating, wire manufacturing, industrial surfactants and many other products and uses.

USEPA and various state agencies, are taking steps to better understand and address the presence of PFAS in the environment, particularly in drinking water. Many PFAS are, by design, stable compounds that can remain in the environment for a very long time without breaking down. Only a few of the PFAS substances have been studied for their human health impacts. To date, PFOA and PFOS, the two substances most widely used and most often detected in the environment, are the PFAS substances that have been most studied.

U.S. EPA:

In 2016, EPA issued a Health Advisory Level (“HAL”) for PFOA and PFOS of 70 parts per trillion in drinking water. The HAL is an advisory level only and not a binding drinking water standard. In February 2019, EPA issued a PFAS Action Plan to guide the agency’s efforts to better understand PFAS and reduce any risks associated with PFAS exposure. EPA’s efforts at implementing the plan are ongoing.

Many states are developing and implementing their own PFAS action plans.

Delaware:

Following discovery of detections at Dover Air Force Base, New Castle County Airport and other locations, the Delaware Department of Natural Resources and Environmental Control (“DNREC”) issued its July 2, 2018 Policy for Sampling and Evaluation of Per- and Poly- Fluoroalkyl Substances (PFAS) in Surface Water and Groundwater (the “DNREC Policy”). The Secretary of DNREC exercised its authority to add PFOS and PFOA to the regulated hazardous substances list. DNREC adopted the U.S. EPA’s HAL of 70 parts per trillion for PFOS and PFOA , to be used as the screening level for determining if further evaluation, including risk assessments, is necessary. The DNREC Policy, which is set to be revaluated in July 2021, provides that any adoption by U.S. EPA of PFAS as a hazardous substance or primary drinking water contaminant will supersede the limited scope of the Policy. DNREC also updated its Guidance for Notification Requirements to address PFAS.

New Jersey:

New Jersey got out ahead of most of the country in regulating PFAS. In January 2018, New Jersey issued a specific groundwater quality criterion of 10 parts per trillion (“ppt”) for PFNA (after its November 2015 Interim Specific Groundwater Quality Criterion for PFNA was struck down by the Superior Court) and adopted a drinking water maximum contaminant level (“MCL”) for PFNA of 13 ppt in September 2018. (Upon the issuance of the MCL, the New Jersey groundwater quality criterion for PFNA became 13 ppt as well.) By March 2019, New Jersey issued interim specific groundwater quality criteria for PFOA and PFOS of 10 ppt, and in April 2019, proposed drinking water maximum contaminant levels for PFOA and PFOS of 13 ppt and 14 ppt. PFNA is now a New Jersey hazardous substance and PFOA and PFOS are proposed hazardous substances.

Pennsylvania:

Largely in response to PFAS detected in Montgomery and Bucks Counties, in September 2018, Pennsylvania formed a PFAS Action Team and PADEP has developed a PFAS sampling plan to test public water systems across the Commonwealth for six PFAS (PFOS, PFOA, PFNA, PFHxS, PFHpA, and PFBS.) In addition, Pennsylvania’s Act 2 incorporates the USEPA’s HAL as statewide health based standards.

Fox Rothschild

This evolving area of the law can pose unique challenges for companies, water suppliers, and property owners. Fox Rothschild attorneys are actively engaged for clients on PFAS issues at the national level, as well as in Delaware, New Jersey and Pennsylvania, and have the necessary experience to help clients navigate these challenges. Watch this Blog and visit our Environmental Practice page to learn more. (https://www.foxrothschild.com/environmental/)

Additional information can be found here:

Acronyms:

ATSDR – Agency for Toxic Substances and Disease Registry

CWS – Community Water System

HAL – Health Advisory Level

PFAS – The family of Per- and Polyfluoroalkyl Substances

PFCA – Perfluoroalkyl Carboxylic Acid

PFBS – Perfluorobutane Sulfonic Acid

PFBA – Perfluorobutanoic Acid

PFHpA – Perfluoroheptanoic Acid

PFHxS – Perfluorohexane Sulfonic Acid

PFNA – Perfluorononanoic Acid

PFOA – Perfluorooctanoic Acid

PFOS – Perfluorooctane Sulfonate