2020 promises to be a busy year for the Pennsylvania Department of Environmental Protection (PADEP) and its goal to regulate and address PFOA and PFOS contamination.
Pennsylvania first became aware of polyfluoroalkyl substances (PFAS) as an emerging contaminant in 2013, after the United States Environmental Protection Agency (EPA) included perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) in its Third Unregulated Contaminant Monitoring Rule (UCMR-3) for drinking water. In 2016, EPA reduced its published Health Advisory Levels (HAL) for PFOA and PFOS from 400 and 200 parts per trillion, respectively to a combined lifetime drinking water HAL for both of 70 ppt. PADEP has worked with many Public Water Suppliers to address any water supplies that have contamination in excess of EPA’s HAL.
Recently, in the 2019 PFAS Action Team Report, the Pennsylvania PFAS Action Team reported on the results of the PFAS Drinking Water Sampling Plan and other efforts to monitor and address PFAS contamination. The report made clear that, beyond monitoring, PFAS largely remains “unregulated” in Pennsylvania. This may soon change; PADEP has recently published for public comment its proposal to, among other things, adopt PFOS, PFOA, and Perfluorobutanesulfonic acid (PFBS) soil and groundwater numeric values into the Pennsylvania Land Recycling Act (Act 2) Chapter 250 regulations.
Currently, the Act 2 process allows a remediator to address groundwater contamination for which there is an EPA HAL, and, for soil, to address potential exposure to any PFAS contamination through “pathway elimination.” This is because, under Act 2, where PADEP has not established a numeric concentration value for a substance (referred to as a “Medium-specific concentration” or “MSC”), Act 2 administratively incorporates an EPA HAL as a groundwater MSC. Note, however, that Act 2 does not administratively incorporate an EPA HAL as an applicable soil MSC, which is why a remediator’s only current option to address soil contamination is “pathway elimination.”
In that sense, PADEP’s proposed Chapter 250 update is essentially formally incorporating EPA’s PFOS and PFOA HALs of 70 ppt as Act 2 groundwater MSCs. Using data from the EPA HAL, PADEP can then also adopt applicable soil MSCs, which will provide remediators with more options to address both groundwater and soil contamination. These proposed standards, if finalized, will apply to any person who voluntarily addresses PFOS, PFOA, and PFBS contamination and any person who is ordered to do so by PADEP under, for example, the Clean Streams Law or Solid Waste Management Act.
The 2019 PFAS Action Team Initial Report also noted PADEP’s intent to develop a “maximum contaminant level” (MCL) – an enforceable drinking water standard that PADEP could enforce through its Safe Drinking Water regulations. If it does so, PADEP will publish any proposed MCL, likely in 2020 or 2021. Currently, Public Water Suppliers are only required to report samples of PFAS to regulatory authorities if they exceed EPA’s PFOS and PFOA HALs.
Outside of the Act 2 and Safe Drinking Water contexts, PFAS generally remains “unregulated” in Pennsylvania. Though under the Pennsylvania Hazardous Sites Cleanup Act (HSCA) PADEP has authority to investigate and address sites that are potentially contaminated with PFAS, it generally does not have the authority under HSCA to enforce against any potentially responsible parties. This can’t happen until EPA or DEP officially designate PFOA, PFOS, or any other PFAS contaminants as a “hazardous substance” under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or Pennsylvania’s HSCA. EPA has stated its intent to consider this designation in 2020. See, Regulatory Status of PFAS by U.S. EPA as of February 2020.