The United States Environmental Protection Agency (USEPA) recently announced two major developments regarding the agency’s efforts to address and regulate per- and polyfluoroalkyl substances (PFAS). As part of USEPA’s PFAS Action Plan, USEPA unveiled interim guidance to address PFAS contamination in groundwater, as well as a new validated method for testing PFAS in drinking water. Both agency actions will influence efforts to address PFAS on the state-level, especially in relation to PFAS clean-up efforts and setting PFAS screening levels. Moreover, these recent efforts to establish PFAS screening and clean-up levels will further lead to potential enforcement actions, as well as other litigation related to PFAS contamination. Indeed, a new action filed this week against the federal government for PFAS water treatment costs might be the beginning of a wave of PFAS actions to hit California.
As we previously reported, last year USEPA revealed its formal “Action Plan” to implement a host of both short and long term efforts to address the widespread concern over PFAS contamination. In December, USEPA checked off two items from its Action Plan for PFAS.
On December 20, 2019, USEPA issued interim guidance to address PFAS contamination in groundwater that may be current or potential sources of drinking water. The guidance is intended to be used under federal cleanup programs, meaning clean-ups under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and corrective action under the Resource Conservation and Recovery Act (RCRA). USEPA’s guidance recommends using a screening level of 40 parts per trillion (ppt) to determine if perfluorooctanoic acid (PFOA) and/or perfluorooctane sulfonic acid (PFOS)—the two most common PFAS compounds—are present at a site that may warrant further attention. In addition, USEPA recommends using the drinking water health advisory level of 70 ppt as the preliminary remediation goal (PRG) for contaminated groundwater where no state or tribal maximum contaminant level (MCL), or other applicable standard exists.
However, many states have already adopted clean-up levels significantly lower than USEPA’s interim guidance. For example, the California State Water Resources Control Board’s (State Water Board) current recommended single health advisory level is 70 ppt, but as we previously noted, the State Water Board will likely update this level later this year. In addition, the State Water Board’s PFOS drinking water notification level is 6.5 ppt, and the PFOA notification level is 5.1 ppt, which are both significantly lower than the levels set by USEPA in its interim guidance. Accordingly, at least with respect to California, the State Water Board’s standards will likely continue to drive clean-up requirements. In contrast, states that have already adopted higher screening levels and remediation goals than USEPA may now be influenced to lower those standards based on USEPA’s standards.
On December 19, 2019, USEPA unveiled a new validated method for testing PFAS in drinking water. The new test method known as Method 533 focuses on “short chain” PFAS, which are PFAS compounds with carbon chain lengths of four to 12. Method 533 also complements USEPA Method 537.1, and can be used to test for 11 additional PFAS compounds in drinking water. For years, validated test methods for PFAS have been very limited (and expensive to conduct), but with scientific advancement and an increased understanding for how PFAS interact and breakdown in the environment, new test methods are becoming more readily available. These new test methods make it possible to test for additional PFAS compounds, potentially increasing the number of PFAS compounds that will need to be regulated by USEPA and states.
Finally, on January 21, 2020, California-American Water Company filed a lawsuit against the federal government for costs related to a water treatment system installed to clean-up a well allegedly contaminated with PFOA and PFOS from the use of fire retardant foam containing PFAS at the former Mather Air Force Base near Rancho Cordova. According to the complaint that was filed in the United States District Court for the Eastern District of California, one of the plaintiff’s drinking water supply wells was contaminated as a result of either the leaching of PFOA and PFOS into groundwater at the base and migration of those compounds to the well, and/or the government’s practice of reinjecting contaminated groundwater after treating the water for other pollutants. The plaintiff seeks damages of over $1.3 million. To our knowledge, this is one of the first actions filed in the State of California seeking to recoup PFAS clean-up costs, and may be an early sign of a new wave of PFAS litigation throughout California.