In April, the Environmental Protection Agency (“USEPA”) took two actions regarding per- and polyfluoroalkyl substances (“PFAS”), or so-called “forever chemicals,” that could have far-ranging implications.
Drinking Water Standards
First, USEPA established the first enforceable drinking water standards for PFAS chemicals. USEPA established Maximum Contaminant Levels (“MCL”) for six PFAS compounds, all of which are more stringent than the state-imposed MCLs developed by the Pennsylvania Department of Environmental Protection (which are now preempted by the federal standards). The new federal regulations require public water systems to come into compliance over a period of years. Within three years of promulgation of the rule, all public water systems must complete their initial monitoring for the designated PFAS compounds in their intake water. Compliance with the MCLs must be achieved within five years of promulgation of the rule. If PFAS is detected in the intake water, that fact must be included in the required report to customers.
It is important to note that these sampling, treatment, and notification responsibilities will not fall only on the major water companies but also on small private water systems. Any system with 15 or more connections used year-round or at least 25 consumers year-round is considered a public water system for purposes of the rule. For example, mobile home parks, residential HOA’s with water systems, assisted living and continuing care facilities and factories that supply potable water (including hand washing and bathing) to their employees, and business parks with their own water systems over the threshold service numbers will be subject to the new requirements.
PFAS related litigation has been on the rise throughout the country. To date, most of the cases have involved PFAS manufacturers or significant users, such as the military. However, as public water systems struggle to meet the new drinking water MCLs they may begin to look upstream at industrial dischargers, sewer systems, and landfills within the watershed and push for more stringent monitoring or treatment. Given the prevalence of PFAS in the environment it may be hard to determine who, if anyone, is responsible.
In addition to the obvious implications for public water systems, the establishment of these new MCLs will have a significant impact on remediation projects. The drinking water MCLs automatically become groundwater cleanup requirements under federal and state law. In Pennsylvania, the federal MCLs are now the statewide health standard for groundwater. PADEP will also develop soil remediation standards based on the MCLs and the potential for leaching into groundwater. The MCLs will also be applicable to remediation at federal Superfund sites under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).
Hazardous Substances
USEPA’s second action was to designate two PFAS substances as CERCLA hazardous substances, specifically PFOA and PFOS, two of the most common PFAS compounds. The designation will have immediate effects on Superfund remediations as well as due diligence for property and business purchases, and it provides the regulators with a basis to demand investigation or sampling for PFAS substances where known contamination exists. McNees attorneys have already seen USEPA demanding PFAS sampling at extant Superfund sites. The designation also raises the question of whether it will cause a “reopener” at closed Superfund sites. However, there is no question that PFAS in the groundwater and soil will become a remediation target at Superfund sites and Act 2 (Pennsylvania’s remediation statute) sites.
Lastly, due diligence for any real estate purchase clearly must now include PFAS. McNees lawyers have been recommending this practice for some time but, given these two USEPA actions, it becomes essential to understand the uses of the tract over time to assess the potential for PFAS use and to conduct appropriate sampling. The standard Phase I environmental site assessment that is necessary to establish that “all appropriate inquiry” has been completed (to qualify for certain innocent landowner defenses) is geared, in part, to determine whether a “Recognized Environmental Condition” is present at the site. A REC is defined generally as a release or potential release of “hazardous substances.” Because PFAS had not been designated as hazardous substance prior to USEPA’s recent action, PFAS were alternative “non-scope” items for Phase I ESAs, meaning that they could be included as part of the assessment or not. With the recent USEPA action, PFAS are now scope items and any potential release of PFAS will be considered a REC. USEPA has made it clear that obtaining Superfund liability protection by completing the required “all appropriate inquiry” now must include PFAS. As importantly, the potential for Phase II investigation recommendations and the time and expense to complete such investigations also increase due to the fact that PFAS are so common in the environment.
The regulation and remediation of PFAS remains a hot-button item, and the recent actions by USEPA only serves to amplify and enforce the fact that PFAS will shape much of the environmental landscape in the coming months and years.
