Governor DeWine issues order to analyze PFAS in Ohio’s drinking water

Bricker Graydon LLP

Bricker & Eckler LLP

On September 27, 2019, Governor Mike DeWine announced that he has directed the Ohio Environmental Protection Agency (Ohio EPA) and Ohio Department of Health (ODH) to analyze the prevalence of per- and polyfluoroalkyl substances (collectively, PFAS) in Ohio’s drinking water systems (Governor’s Order). PFAS are not currently regulated compounds in Ohio. According to the governor, the current levels of PFAS in Ohio’s water supply are unknown, and an analysis “is important for both the protection of [Ohio’s] natural resources and for public health.”

Summary of Governor DeWine’s order
More specifically, Governor DeWine has directed Ohio EPA and ODH to develop an “action plan” by December 1, 2019, with the focus of testing public and private water systems. The governor’s order specifically notes that water supplies “near known sources of PFAS, such as firefighting training sites and manufacturing facilities” are to be analyzed.

As part of this action plan, Ohio EPA and ODH are to develop a strategy to work with communities and private well owners on “appropriate response measures if high levels of PFAS are found.” The governor’s order further directs the agencies to develop education and outreach materials to assist Ohioans in better understanding PFAS compounds, any associated health risks and practical measures to reduce exposure. Lastly, the order directs Ohio EPA and ODH to continuously monitor emerging areas of national research as they pertain to adequate chemical substitutes for PFAS, soil remediation and technologies to treat PFAS.

The governor’s press release comes on the heels of a September 18, 2019, letter sent by Governor DeWine to the U.S. Senate and House Armed Services Committees calling for more comprehensive national legislation on the regulation of PFAS. That letter was joined by 14 other governors from across the country. According to DeWine, the evaluation of PFAS risks is an issue that requires the attention and resources of the federal government in addition to states in order to effectively address potential PFAS contamination.

What are PFAS?
The category of compounds known as PFAS represents a large group of chemicals that include both perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), among others. PFAS have been manufactured and used in a variety of industries around the world since the 1940s and are ubiquitous in the environment and are found in products used on a daily basis. According to the United States Environmental Protection Agency (US EPA), PFAS compounds can be found in the following:

  1. food packaged in PFAS-containing materials, processed with equipment that used PFAS, or grown in PFAS-contaminated soil or water
  2. commercial household products, including stain- and water-repellent fabrics, nonstick products (e.g., Teflon), polishes, waxes, paints, cleaning products and fire-fighting foams
  3. workplaces, such as production facilities or industries that use PFAS
  4. drinking water typically localized and associated with a specific facility
  5. living organisms, including fish, animals and humans, where PFAS have the ability to build up and persist over time

According to US EPA, the concern with PFAS compounds – and specifically with PFOS and PFOA – is that they are very persistent in the environment and the human body, they do not break down, and they can, therefore, accumulate over time, leading to adverse human health effects.

Notably, two main PFAS compounds have already been phased out of production in the United States (PFOS in 2002 and PFOA in 2015). This is due to the commitment of eight major chemical manufacturers to participate in US EPA’s PFOA Stewardship Program and, thereby, eliminate use of these PFAS compounds. However, these compounds are still produced in international markets and imported into the United States through consumer goods, such as carpet, leather and apparel, textiles, paper and packaging, coatings, rubber and plastics.

Status of PFAS regulation in Ohio and across the country
While Ohio is in the early stages of considering PFAS regulation, US EPA and a handful of states have already promulgated standards in an attempt to begin the process of regulating PFAS compounds.

US EPA has established health advisory levels for PFOS and PFOA at 70 parts per trillion for PFOS and PFOA in drinking water. On February 14, 2019, US EPA released its PFAS Action Plan, which outlines the steps the agency is taking to further address PFAS. These steps include establishing enforceable maximum contaminant level (MCL) requirements for PFOS and PFOA in drinking water; defining those compounds as “hazardous substances” for purposes of CERCLA; developing groundwater cleanup recommendations for contaminated sites; and potentially adding PFAS chemicals to the Toxics Release Inventory.

States that have already promulgated guidelines or standards for PFOA and/or PFOS include Alaska, Maine, Minnesota, New Jersey, North Carolina, Texas and Vermont. A number of other states are moving towards similar action. Notably, existing state standards vary widely in terms of the numerical value of the standard, the process for developing the standard and the manner in which the standard is to apply.

PFAS litigation
In recent years, PFAS compounds have been the subject of litigation across the country, as well as in Ohio. In 2017, DuPont settled nearly 3,500 lawsuits for $670 million involving PFAS and its DuPont Washington Works plant in Parkersburg, West Virginia. In 2018, the Ohio Attorney General filed a lawsuit against DuPont on behalf of the State of Ohio, with allegations of environmental contamination and public nuisance associated with DuPont’s use of PFAS and remains pending.[1] Additionally, there is current ongoing litigation in Ohio involving a firefighter’s proposed class action lawsuit against several manufacturers of PFAS products associated with exposure to PFAS through products, such as firefighting foam.[2]

Potential impacts and questions raised by the governor’s order
The governor’s order raises numerous questions relevant to both industry and public and private water systems alike, while providing few answers. A few of the questions raised include:

  • When determining which public and private water systems are to be tested, how will “near” be defined when considering the directive to test “near known sources of PFAS?”
  • What constitutes “known” sources of PFAS? Will this be based on suspected use? Documented use? Current or historic use? Or will this be based on self-reported data or actual sampling data?
  • Will sampling data include drinking water, ground water or both?
  • Which PFAS compounds are to be tested for?
  • What sampling and analytical procedures are to be utilized?
  • What constitutes “high levels of PFAS” when triggering the requirement for the agencies to work with communities and private well owners on appropriate response measures if high levels of PFAS are found, given the absence of a regulatory standard in Ohio?
  • How will it be determined which communities and private well owners are to be involved if “high levels of PFAS” are triggered?
  • Who will take the lead on and what will be the procedure for developing the education and outreach materials that Governor DeWine’s order requires?

The December 1, 2019, timeline imposed by Governor DeWine’s Order presents a tight deadline for answering many unknown questions associated with the Governor’s Order. Bricker & Eckler will continue to be closely monitoring Ohio EPA’s actions and progress in implementing the Governor’s Order in order to advise clients accordingly.

[1] State of Ohio v. DuPont, et al., Case No. 18 OT 32 (Washington Cty. Ohio, J. Hogan)

[2] Kevin D. Hardwick v. 3M Co., Case No. 2:18-cv-01185 (S. Dist. Ohio, J. Sargus).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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