In July 2020, we posted on takeback disposal options for some PFAS-containing firefighting foams, with a caveat about recent actions taken by the New York State Department of Environmental Conservation (NYDEC) to suspend incineration of AFFF that the U.S. Department of Defense (DoD) had sent to a hazardous waste facility in Cohoes, NY, pending the results of environmental sampling in the nearby community. In late August 2020, the United States Environmental Protection Agency (EPA) announced a partnership with DoD and state and local partners to identify innovative ways to destroy PFAS in AFFF. The “Innovative Ways to Destroy PFAS Challenge” may sound like the latest television reality competition show, but the aim is to support the development of non-thermal technologies to destroy PFAS. A prize of up to $50,000 is being offered for “the best design concept to safely destroy the chemical” – that is, technologies and approaches that can remove at least 99 percent of PFAS in unused AFFF, without creating any harmful byproducts. EPA says that the ideal technology that it hopes to see developed as a result of the Challenge would:

  • Perform onsite destruction of at least 99 percent of PFAS in AFFF formulations;
  • Be currently on the market or near market;
  • Destroy parent PFAS compounds;
  • Destroy short-chain PFAS byproducts if volatilization occurs;
  • Destroy or neutralize any unkdwanted byproducts that would need to be incinerated or landfilled in a hazardous waste facility;
  • Be more cost effective than thermal destruction;
  • Have good environmental and public health outcomes (e.g., does not transfer PFAS or any unwanted byproducts into other media, and does not create other toxic residues after destruction of PFAS);
  • Be potentially applicable to other PFAS waste streams (e.g., biosolids, contaminated ground water, etc.).

More information can be found at EPA’s dedicated webpage for the Challenge, including eligibility requirements and judging criteria.

States continue to develop standards, guidance and goals for PFAS. The ITRC has updated its table for PFAS in groundwater, drinking water and surface water/effluent to reflect the values in effect as of August 31, 2020. https://pfas-1.itrcweb.org/fact-sheets/. A graphic depicting the states that have set standards, guidance or goals is set forth below.

PFAS - State Survey Litigation Map

Source: ITRC PFAS Fact Sheets updated as of August 31, 2020 https://pfas-1.itrcweb.org/fact-sheets/

Highlights are as follows:

24 states have standards, guidance or goals

  • 17 states have promulgated standards
    • Alaska, California, Colorado, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New York, North Carolina, Oregon, Rhode Island, Texas and Vermont
  • 7 states have guidance or clean-up goals
    • Connecticut, Delaware, Florida, Maine, Nevada, Ohio, and Pennsylvania

9 states have standards, guidance or goals for only PFOA/PFOS

  • Alaska, California, Delaware, Florida, Iowa, Montana, New York, Pennsylvania, and Rhode Island

14 states have standards, guidance or goals for PFAS in addition to PFOA/PFOS

  • Colorado, Connecticut, Massachusetts, Michigan, Maine, Minnesota, Nevada, New Hampshire, New Jersey, North Carolina, Ohio, Oregon, Texas, and Vermont (Indiana regulates only PFBS)

Groundwater standards vary greatly

  • The PFOA drinking water standard in Michigan is 8 ppt and in North Carolina it is 2,000 ppt

The trend is to set more stringent standards – recent standards are among the lowest

  • Michigan MCLs effective August 3, 2020 are PFOA 8 ppt, PFOS 16 ppt, and PFNA 6 ppt

New York MCls effective August 26, 2020 are PFOA 10 ppt and PFOS 10 ppt

In a previous post, we noted the New Hampshire Superior Court’s issuance of a preliminary injunction enjoining the New Hampshire Department of Environmental Services (NHDES) from implementing final maximum contaminant levels (MCLs) and ambient groundwater quality (AGQS) standards for four PFAS compounds.  On July 23, 2020, Governor Chris Sununu signed into law legislation that set maximum contaminant levels for drinking water (MCLs) for the four compounds:

PFOA 12 ppt
PFOS 15 ppt
PFHxS 18 ppt
PFNA 11 ppt

In doing so, the Governor and the Legislature decided not to wait for State’s courts to resolve the appeal of the standards promulgated by NHDES.

That appeal and the preliminary injunction had turned on whether NHDES had conducted an adequate cost-benefit analysis. It appears from review of the fiscal notes associated with the legislation that the legislature considered, and acted on, the same financial information considered by NHDES, though the legislation also added funding to defray the impact.

Background

On November 26, 2019, the Superior Court of New Hampshire had issued a preliminary injunction enjoining NHDES from implementing the final rules that contained MCLs and Ambient Groundwater Standards for the four PFAS. The Court held that the appellants were likely to succeed on their claim that NHDES did not conduct an adequate cost-benefit analysis. The Court stated that the agency needed to do more than simply “consider” costs and benefits.

Following the November injunction, and likely in response to it, the New Hampshire legislature introduced HB1264 in early January 2020, which proposed to establish by statute the four new PFAS MCLs, and, among other things, to appropriate $50,000,000 to NHDES for the purpose of providing low-interest loans to community water systems and non-profit, non-transient public water systems for remediation efforts.

Notably, the fiscal note for HB1264 uses the same costs identified by NHDES in its cost-benefit analysis, which estimated treatment costs for public water systems ranging from $65 million to $142.8 and operating and maintenance (O&M) costs from $6.9 million to $13.4 million. As for “landfills, contaminated sites and groundwater discharge sites,” the fiscal note states that costs for compliance are “indeterminable,” but estimated “Corrective Action Costs” for different types of facilities such as “Active Hazardous Waste Sites” ($2.3 to $4.4 million), “Municipal Landfills” ($935k to $1.75 million) and “Groundwater Discharge Permit Sites” ($5 million). Again, these estimated “Corrective Action Costs” appear to be based on NHDES’ cost-benefit analysis, which had been found inadequate in the injunction proceedings.

Earlier this year, North Carolina’s Department of Environmental Quality proposed a new rule to the Environmental Management Commission’s Groundwater Committee to set the groundwater standards for PFOA and PFOS at a combined allowed level of 70 parts per trillion (or 0.07 parts per billion).  Currently, there are no standards for PFOS, and the interim standard for PFOA established in 2006 is 2,000 parts per trillion. As of July 2020, the EMC has not set the proposed rule for public notice and hearing.

On August 10, 2020, the N.C. Attorney General announced a formal investigation into PFAS contamination in North Carolina.  This follows NCDEQ’s complaint in 2017 against Chemours Company FC, LLC alleging violations of N.C. water quality laws arising out of the discharge of PFAS including GenX, which prompted the parties to enter a consent order in 2019.  In May 2020, over 200 residents near the Chemours factory filed a federal lawsuit alleging contamination of their property and water supplies.

It’s clear that North Carolina is eager to further regulate PFAS, but hasn’t found a solution everyone can agree on yet.

 

As the political season begins in earnest with the Democratic and Republican National Conventions, PFAS is one subject for which regulatory action already under consideration may be accelerated if the White House changes hands from Republican to Democrat.

According to Biden’s “Plan to Secure Environmental Justice and Equitable Economic Opportunity,” three steps that a Biden administration would take are:

  • setting enforceable limits for PFAS In the Safe Drinking Water Act (“SDWA”),
  • designating “PFAS” as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), and
  • accelerating toxicity studies and research on PFAS.

Of course, in addition to being parts of a plan of an administration that may or may not be elected, each of these are among steps that the current administration’s United States Environmental Protection Agency is acting on, and/or has been considering acting on, under its 2019 PFAS Action Plan.

In particular, according to its PFAS Action Plan: Program Update (February 2020), “Trump’s EPA” is, among other actions:

  • proposing to regulate PFOA and PFOS under the SDWA,
  • “moving forward with the regulatory process for proposing to designate PFOA and PFOS as hazardous substances under CERCLA,” and
  • “currently researching the human health effects of seven of the most common PFAS,” including GenX and PFBS (for which EPA has developed draft toxicity assessments), and PFDA, PFNA, PFHxA, PFHxS, and PFBA (for which EPA is conducting an Integrated Risk Information System (“IRIS”) assessment).

Therefore, while PFAS is on the radar and agenda of both parties to the upcoming election, the real question is how aggressively a new Democratic administration might move forward on these issues compared to the existing administration, including as to when and if regulatory action is actually taken, and the degree, for example, as to the number of substances regulated and at what limits.

According to ITRC, 13 states (Alaska, California, Connecticut, Delaware, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, North Carolina, Ohio, Rhode Island, and Vermont) regulate PFAS in drinking water through an MCL, screening level and/or action level. Some states, including New Jersey and Massachusetts, are now regulating PFAS in water discharges. Regulation of water discharges containing PFAS presents challenges due to the ubiquitous nature of the chemicals and the extremely low regulatory standards that apply to PFAS. While these new monitoring requirements will provide additional data on the presence of PFAS, the data may not shed much light on the source of the PFAS since the PFAS can be present in intake water and/or storm water that enters the site holding the discharge permit. Under the New Jersey program, the permittee is responsible to find the source of the PFAS, even if it is an off-site source, and take measures to prevent the water containing PFAS from entering its discharge.

The Massachusetts Department of Environmental Protection (“MassDEP”) is now including a PFAS monitoring requirement in its water discharge permits. The provision requires the permittee to submit an evaluation of whether it uses any products containing PFAS and whether use of those products can be reduced or eliminated. It also requires that within six months after publication of an EPA-approved method for sampling wastewater, or two years from the effective date of the permit, whichever is earlier, the permittee must monitor for six PFAS compounds (PFHxS, PFHpA, PFNA, PFOS, PFOA and PFDA). After one year of monitoring, if four consecutive samples are reported as non-detect for all six PFAS compounds, then the permittee may request to discontinue PFAS monitoring. This condition was included in the recent draft permits for the Shire Human Genetic Therapies Cambridge facility, the Town of Athol Wastewater Treatment Plant, the Harvard University Blackstone Steam Plant and the Genzyme Corporation Allston facility.

New Jersey has gone a step further and is requiring facilities with discharge to groundwater permits that are likely to have PFNA, PFOA and/or PFOS in the discharge to both monitor and treat the discharge if the PFAS are found present above the New Jersey groundwater quality standards. As noted in our prior article, the New Jersey ground water quality standard is 14 ppt for PFOA and 13 ppt for PFOS and PFNA. In its response to comments, NJDEP stated that if in the course of the required monitoring, “PFNA, PFOA, and/or PFOS are detected above the New Jersey ground water quality standards, the NJPDES-DGW permit will require an investigation of the source and removal (if possible) from the waste stream.” (NJDEP response to comment 225.) The requirement to investigate and address PFAS sources extends to off-site sources. NJDEP advised that if off-site sources “like precipitation, contain PFNA, PFOA and/or PFOS and the storm water is directed to a regulated discharge to groundwater unit… the facility must comply with the Department’s groundwater quality standards prior to discharge, by the property line or sensitive receptor.” (NJDEP response to comment 223.) NJDEP recommends “physically locating and removing contaminated material from the site, implementation of storm water best management practices, and/or implementing drainage control measures to direct storm water away from affected areas until those sources can be removed. If it is determined the source is from off-site, the facility may need to update its drainage control plan to eliminate run-on from other properties or take other measures.” (NJDEP response to comment 32.)

Due to the ubiquitous nature of PFAS in the environment and commercial and industrial processes and products, the implementation of these new regulatory schemes will prove interesting.

As more states develop regulatory standards for PFAS, many are also recognizing that certain formulations of firefighting foams that were manufactured into the early 2000s or earlier contain legacy PFAS compounds, including Class B Aqueous Film-Forming Foams (AFFF), and that historic applications of these foams in training or in emergency response uses may have contributed to PFAS contamination in the environment.

While manufacturers generally ceased producing PFAS-containing foams in 2002, and many states have since placed strict limits on when PFAS-containing foams can be used, a thorny problem remains: what to do with stockpiles of PFAS-containing foams across the country. Several states have responded with programs for the take-back and disposal of PFAS-containing foams.

Michigan’s Department of Environment, Great Lakes, and Energy (EGLE), for example, has developed a free and voluntary PFAS foam disposal program with the state fire marshal’s office, and has collected over 32,000 gallons of AFFF containing long-chain PFAS since December 2019. The collected foams are being sent to Idaho for solidification and disposal. The program is currently slated to end on July 31, 2020.

Washington also has a safe disposal program, funded through its Department of Ecology.

Massachusetts established a take-back program in 2018, providing funding for local fire departments to identify PFAS-containing AFFF manufactured before 2003 in their stockpiles, and for MassDEP to dispose of these foams. During its existence, the program collected over 149,000 pounds (more than 17,500 gallons) of legacy foam from fire departments across the Commonwealth and MassDOT, including foams from area foam caches or major facilities. The collected foams were sent out of state for destruction at a refuse derived fuel incinerator.

For municipalities or other authorities or users concerned about stockpiles of firefighting foams, it’s worth checking with your state’s environmental agency or emergency management officials to determine whether a take-back program currently exists in your state and if your facility is eligible to participate.

Working through voluntary state takeback programs may be preferable to contracting directly with disposal facilities. For example, an upstate New York hazardous waste kiln operator was recently directed to cease incineration of U.S. Department of Defense foams containing PFAS compounds until additional testing confirms that high-temperature incineration effectively destroys PFAS in AFFF. The New York state environmental agency is conducting soil and water sampling in the communities around the facility, and is requiring expanded review of the facility’s Title V and hazardous waste permit renewals.

The EPA has amended the Chemical Data Reporting rule, under the Toxic Substances Control Act, including revisions to reporting requirements, definition updates and an extension of the 2020 CDR submission period. Production of PFOA and PFOS is subject to CDR reporting.
In this alert, we outline the amendments and how they might affect your company’s obligations under TSCA.

As we’ve discussed in prior posts, per- and polyfluoroalkyl substances (PFAS) have historically been an important component of aqueous film forming foam (AFFF) products that are used for training and fire suppression. As awareness of PFAS in AFFF has grown over the last several years, governments at the federal, state, and municipal level, as well as industry, have sought to increase the use of “PFAS-free” AFFF. The need for AFFF without PFAS has resulted in certifications of certain AFFF products as “PFAS-free” that seek to identify AFFF products that potentially safe for environmental and health concerns.

Recently, Clean Production Action has offered an ecolabel for “PFAS-free” firefighting foam products, which they call “GreenScreen Certified Firefighting Foam.” Clean Production Action caveats that a “PFAS-free” product is defined as “less than 1 part per million (ppm) total organic fluorine as measured by combustion ion chromatography.”

What is “Total Organic Fluorine”?

Typically, analysis is performed on select individual PFAS compounds, such as perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), using EPA’s Method 537.1. Comparatively, measuring for “total organic fluorine” can be an alternative to measuring individually for the roughly 4,000 individual PFAS compounds. This analytical method can determine if PFAS is present (relative to the test’s detection limit capability) but it might not be able to identify which particular PFAS compound it may be. The GreenScreen Certified Frequently Asked Questions acknowledge this and state that “[t]here are some analytical testing methods that can be used to detect individual chemicals at a lower detection limit. However, these test methods only test for a small fraction of the over 4,000 PFAS chemicals that have been identified.”

In that context, it is important to note that many regulatory standards regarding PFAS substances, such as in New Jersey and those proposed in Pennsylvania, focus on individual PFAS compounds like PFOS and PFOA rather than a “total” PFAS and require detection down to the part per trillion (ppt) level (as opposed to the 1 ppm level noted above). As we discussed in an earlier blog post, New Jersey recently established establish drinking water standards for PFOS and PFOA at 13 ppt and 14 ppt, respectively. Similarly, EPA established a Lifetime Drinking Water Health Advisory Level for Perfluorooctanoic acid (PFOA) perfluorooctane sulfonate (PFOS) at a combined concentration of 70 ppt.

This comparison raises an important question: can a method that analyzes for “total organic fluorine” to the ppm or part per billion (ppb) level properly serve as an alternative analytical method when regulatory PFAS standards require detection of individual PFAS substances into the low ppt? As noted above, while a “total” organic fluorine measurement may be able to identify if PFAS is present in a substance, it may not be able to identify individual PFAS compounds necessary to adequately characterize and remediate contamination.

The economic impact — both costs and benefits — of the issuance of low parts per trillion standards for nearly ubiquitous PFAS compounds is something that will become clearer as businesses, municipalities, water suppliers and communities act to comply with regulatory standards that require they test for and remove these substances down to trace levels in drinking water and environmental media.  For now, regulatory standard setting is being conducted with an assumption of risk from almost any detectable level of exposure.  This is based on uncertain and sometimes non-existent science and without thorough evaluation of economic costs (and who will bear them), and social and economic benefits.

These issues are front and center in New Hampshire, where on November 26, 2019, the Superior Court issued a preliminary injunction enjoining New Hampshire Department of Environmental Services (“NHDES”) from implementing final MCLs and ambient groundwater quality standards for four PFAS, based, in large part, on the court’s finding that the agency had not conducted an adequate cost-benefit analysis as required by statute.

In doing so the court stated:

[I]t would be absurd to assume . . . the Legislature intended that DES could responsibly carry out its Legislative mandate and impose millions of dollars in costs on citizens and municipalities in New Hampshire without assessing the benefit from doing so, and particularly, the benefit at the various levels [i.e., the MCL and AGWQS values] compared to the correlative cost.

The court stayed the effect of its order until December 31, 2019 to allow an appeal to the state Supreme Court. The parties filed an appeal and cross-appeal and the matter is now pending in the New Hampshire Supreme Court.  The orders of the court and associated briefing can be found here.

In issuing final MCLs and ambient groundwater quality standards for four PFAS (PFOA, PFOS, PFNA and PFHxS) NHDES admitted:

As was the case for the initial proposal, the emerging nature of PFAS contamination limits the availability of certain information that would be needed for a complete quantification of all the costs and benefits that will result from adopting these rules. Examples of these limitations include not having extensive sampling data for all potential contamination sources and public water systems statewide and having an incomplete understanding of all the health impacts associated with exposure to these four PFAS.

NHDES Update on Consideration of the Costs and Benefits Related to Final Proposed Maximum Contaminant Levels and Ambient Groundwater Quality Standards, June 28, 2019.

New Hampshire further explained in the issuance of the standards that “lack of science identifying direct causality between health impacts and these compounds continues to limit quantification of benefit.”  In the court proceeding, NHDES asserts that it has conducted the analysis required by law, based on the information available to it.  The plaintiffs, including both a municipal drinking water supplier and 3M, argue that something more was required, especially as to quantification of the benefits of the standards compared to the expected costs.  The municipal authority also contends that the standards represent an unfunded government mandate, a position the Superior Court did not adopt in its analysis.

The outcome of this case will have implications for all stakeholders in the move to regulate PFAS, even though it may turn on unique nuances of New Hampshire law.  The subjects of the case are core challenges to issuance of, as well as the burden of meeting, parts per trillion PFAS standards – significant gaps in occurrence data and toxicology .   That 3M (as the owner of a water system for its NH employees) is a party to, and is reported to be funding, the municipal authority’s appeal has raised eyebrows, but it is recognition that the burden of these new requirements can represent a significant challenge to water suppliers.