In September 2020, the New Mexico Environment Department (NMED) finalized the settlement of an enforcement action against Cannon Air Force Base (CAFB), a federal facility, relating to the facility’s discharge of PFAS-containing wastewater to groundwater without a permit. According to the allegations of an administrative compliance order (ACO) issued in January 2020, CAFB had an existing groundwater discharge permit that was due for renewal, but the permit renewal application did not disclose the presence of PFAS in the facility’s discharge. Accordingly, NMED refused to administratively continue the permit without CAFB first submitting a renewal and modification application that reflected the presence of PFAS. As a result, CAFB’s groundwater discharge permit expired on March 31, 2019, and its subsequent discharges were therefore unpermitted. (It is notable that several months prior to the enforcement action, the Air Force and NMED had sued one another in federal court; the Air Force sued seeking a declaratory judgment that New Mexico’s state standard was arbitrary and capricious, while NMED alleges in its federal lawsuit that AFFF usage at the bases since approximately 1970 is the source of the PFAS found in area soils and groundwater, asserting claims under state law and RCRA.)

NMED alleged that the Air Force had failed to appropriately notify the agency of the change in the quality of CAFB’s discharge occasioned by the presence of PFAS, and also had been unlawfully discharging its wastewater without a groundwater discharge permit since April 1, 2019. It assessed a civil penalty against the Air Force totaling $1.7 million for multiple violations of state environmental regulations. After CAFB submitted a complete renewal and modification application, the State agreed to accept “an administrative fee” of about $250,000 in full resolution of the civil penalties assessed in the ACO.

This matter points to the difficulty that states around the country are having in enforcing state PFAS standards against the U.S. Department of Defense – the entity that in many states is seen as a significant potentially responsible party with respect to PFAS contamination related to AFFF usage. The Department of Defense has raised numerous defenses and objections to state enforcement and litigation efforts, from sovereign immunity to arguments based on the absence of PFAS from the list of CERCLA hazardous substances, to (as in New Mexico) challenges to the validity of state regulatory standards for PFAS. Interestingly, in the settlement with NMED the Air Force also managed to avoid admission of any of the factual allegations in the ACO or of liability. For now, the friction between state PFAS regulation and enforcement and the Department of Defense continues.

On October 13, 2020, North Carolina, acting through its Attorney General, filed suit in state court against DuPont, Chemours and related companies seeking costs to investigate, assess, remediate, restore and remedy PFAS contamination “across a broad swath of North Carolina.” The complaint alleges that the defendants contaminated the land, air, water and natural resources of North Carolina as a result of releases of GenX and other PFAS from the Fayetteville Works facility. The suit seeks damages for injuries to natural resources, property damages, economic damages, punitive damages, restitution and disgorgement. The complaint, which requests a jury trial, seeks to void the spinoff of Chemours and enjoin the transfer of assets that belonged to “Old DuPont” on the basis the “Old DuPont knew that Chemours was undercapitalized and could not satisfy the massive [PFAS] liabilities that it caused Chemours to assume.”

According to a press release from the Attorney General’s Office, in August the Attorney General announced a formal investigation into those responsible for PFAS contamination in North Carolina and this suit is the first case as a result of that ongoing investigation. In addition to the Attorney General, the complaint was filed by a number of private law firms on behalf of North Carolina. The complaint was filed one day after court approval was received on an Addendum to a Consent Order between the North Carolina Department of Environmental Quality and Chemours that requires Chemours to a take action to reduce PFAS entering the Cape Fear River through residual groundwater contamination from the Fayetteville Works facility. The suit raises a number of interesting issues including the effect of past settlements, the ability to challenge corporate reorganizations, and the Attorney General’s ability to act as a trustee of the state’s natural resources using private law firms.

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.