Concerns about the human health and environmental impacts of per- and polyfluoroalkyl substances – known as “PFAS” – are increasingly in the headlines and trending on a practically daily basis.  Click here for the basics about PFAS chemicals and the potential adverse human health effects.

Last week, an environmental group released a study reporting that 610 sites in 43 states are contaminated with PFAS, with locations ranging from public water systems, military bases, airports, industrial facilities, and firefighting training sites.  Here is one of the many news reports on the nationwide reach of the contamination.

All of this is being driven by the increasing amount of research into the adverse human health effects of PFAS chemicals and how they behave in the environment and in our bodies.

Why does it matter to today’s businesses and their lawyers?  Regulators across the country are paying attention and taking action.

The recent flurry of regulatory actions to address PFAS contamination is creating a pipeline of liability risks that require attention and caution.

Regulatory Actions

In the absence of an enforceable federal cleanup standard, dozens of states are taking action on their own.  This means we are seeing a myriad of proposed standards and regulations, interim guidance, massive data gathering endeavors, and various interpretations of the growing body of research about these chemicals. It is a lot to keep up with.

Here is a quick snap shot of recent regulatory activity from just a handful of those states.  This is in no way a comprehensive list – if you are buying or selling, or taking a security interest in, real property or if your operations use PFAS chemicals (or used to), we recommend looking into what your state is doing or plans to do about PFAS.

Maine

Maine has been active on addressing PFAS for a few years now.  Most recently, in March 2019, the Governor signed an executive order creating a task force to study the effects of PFAS and the Maine DEP established a new requirement to sample for PFAS in biosolids.  The most timely and interesting development is the upcoming public stakeholder meeting on May 31, 2019 on the proposal to designate all PFAS as hazardous matter.

New York

Earlier this year, the New York Department of Environmental Conservation (DEC) issued new guidance – Sampling for 1,4-Dioxane and Per- and Polyfluoroakyl Substances (PFAS) Under DEC’s Part 375 Remedial Programs. The DEC is now requiring all sites in the state cleanup program to sample for PFAS in soil, groundwater, surface water, sediment, and, where applicable, biota.  Sampling is also required for any soil imported to a site.

New Jersey

New Jersey is hailing itself as the national leader on taking aggressive action, and backing it up with a number of legal actions in the last few months.  On March 25, 2019, the New Jersey Department of Environmental Protection (“NJDEP”) issued a directive against five of the big chemical companies –  Solvay, DuPont, Dow DuPont, Chemours and 3M – requiring them to provide information about potential modes of PFAS discharges from their operations and notifying them the state intends to hold them responsible for PFAS remediation costs.  The state is also pursuing natural resource damages for PFAS contamination.

The most important and timely action that will have the broadest reach is NJDEP’s proposed rule to establish both drinking water standards and groundwater cleanup standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFAS), the two most studied and well known kinds of PFAS chemicals.  The proposed standards are among the lowest being considered these days – 13 parts per trillion (ppt) and 14 ppt.  For context, EPA’s unenforceable health advisory standard for these chemicals is 70 ppt.  And yes, parts per trillion is a very, very small concentration.

If this proposed rule takes effect, it will potentially have significant impacts on both ongoing and future remediation sites in New Jersey, and possibly even closed out sites.  There is a public hearing on this proposed rule today, Wednesday, May 15, 2019.  I am attending and will report.

Pennsylvania

On September 19, 2018, the multi-agency PFAS Action Team was formed by Executive Order.  It was charged with developing a comprehensive response for identifying and eliminating sources of PFAS contamination, ensuring drinking water is safe and managing PFAS environmental contamination.  The Pennsylvania Department of Environmental Protection (PADEP) announced it will begin the first phase of an extensive statewide sampling plan this month.  The sampling includes testing more than 300 public water supplies (PWS) across the state.

Michigan

Michigan has been actively investigating PFAS contamination in the state – and finding it. It appears they will find more.  The Michigan PFAS Action Response Team (MPART), an inter-agency coordination to investigate sources and locations of PFAS and protect drinking water and public health, was created in 2017.

In 2018, the state adopted EPA’s unenforceable health advisory standard of 70 ppt for PFOA and PFOS (individually or combined) as its cleanup criteria for groundwater used as drinking water.

On February 4, 2019, Executive Order 2019-3 established MPART as an advisory body comprised of representatives from seven state agencies to address the threat of PFAS contamination in Michigan and facilitate inter-agency coordination.

California

In July 2018, the California State Water Resources Control Board (SWRCB) established drinking water guidelines for water systems aimed at detecting and reporting PFOA and PFOS.  The interim notification level was set at 14 ppt for PFOA and 13 ppt for PFOS and the interim response level was set at 70 ppt.

Then, in a public hearing on March 8, 2019, the SWRCB announced a statewide PFAS investigation plan that will ultimately require over a thousand facilities to test for PFAS chemicals.  On March 20, 2019, Phase I was initiated with orders issued to landfills and airports.  Failure to comply subjects a facility to a penalty of $5,000 per day.   The next phases are expected later this year.

 

 

 

The New Jersey Economic Development Authority (NJEDA) just announced that it has created a new loan program to provide low-interest financing for the remediation of brownfields sites. The new program, called the Brownfields Loan Program, is designed to put vacant and underutilized sites back to productive use as part of Governor Murphy’s goal of bringing economic growth to underserved communities.

The Brownfields Loan Program will provide a bridge loan of up to $5,000,000 to potential brownfield site purchasers and current owners for the costs to investigate and remediate site contamination, as well as for site building and structure related issues such as asbestos abatement. To be eligible for a loan, a New Jersey Licensed Site Remediation Professional must submit a report verifying the existence of contamination. The project must also have a redevelopment plan, an appraised value of at least 100 percent of all debt financing, and must demonstrate local support through a letter of support from the mayor of the municipality in which the project site is located.

Funding will be made available through competitive application rounds, with projects scored on site location, length of time the site has been vacant or underutilized, and similar redevelopment and remediation criteria. Funding priorities will be given to the site with the highest overall scores.

Applications for the Brownfields Loan Program will be available through the NJEDA sometime in the next few months.

On March 15, 2019, the EPA issued a final rule that will ban the retail sale of methylene chloride containing products for consumer uses.  Methylene chloride is a solvent that is currently, but not for much longer, commonly found in consumer paint and furniture strippers.  It is sold by hardware stores and home improvement retailers.

The EPA’s action is based on the adverse effects to consumers using methylene chloride.  It has been documented that short-term exposure to methylene chloride vapors can cause dizziness, loss of consciousness and death resulting from nervous system depression.

The new rule defines a retailer as any person or entity that sells paint and coating removal products to consumers, including sales through the internet.  For a distributor not to be considered a retailer, he/she must distribute methylene chloride-containing paint and coating removal products solely to commercial or industrial end users or businesses.  The new rule does not apply to commercial use of this chemical.

The rule also requires manufacturers, processors and distributors of methylene chloride, to provide downstream users with notice of this ban.  Material safety data sheets provided with the methylene chloride product must indicate that this chemical cannot be distributed in commerce for consumer use.

Given that the rule will not apply to the industrial use (i.e., workplace use) of methylene chloride, it is imperative that employers using this chemical take precautions to protect their employees from the toxic effects of this chemical.  To obtain more information regarding protections that should be in place to protect employees from workplace exposures to methylene chloride visit OSHA.gov.

Earlier today, the New Jersey Department of Environmental Protection (NJDEP) issued a directive requiring five companies – Solvay, DuPont, Dow DuPont, Chemours and 3M – to provide detailed information on their use of PFAS chemicals and potential modes of discharges such as through wastewater treatment plants, air emissions, and consumer products.  The directive also notifies the companies that the state intends to hold them responsible for PFAS remediation costs.

This is yet another move on the state level in pursuit of regulating PFAS chemicals.  We reported earlier today on new developments in New York and are monitoring the soon-to-be issued investigative orders in California.

The New York State Department of Environmental Conservation (NYSDEC) is now requiring all sites entering into a state cleanup program to sample for two of the more popular and well-known “emerging contaminants” – 1,4-dioxane and Per- and Polyfluoroalkyl substances (aka PFAS) – in soil, groundwater, surface water, sediment, and, where applicable, biota.  There is currently no requirement to sample soil vapor.

NYSDEC is also requiring similar sampling of any soil imported to a site, such as for backfill or a soil cap.  According to the guidance, NYSDEC will evaluate the results on a site-specific basis to determine appropriate use.

The recently-issued guidance document, Sampling for 1,4-Dioxane and Per- and Polyfluoroakyl Substances (PFAS) Under DEC’s Part 375 Remedial Programs, is a significant expansion of the NYSDEC policy issued last year, which also required 1,4-dioxane and PFAS sampling at all sites in a state cleanup program, but only of groundwater.

Keep in mind that NYSDEC is still developing cleanup standards for the majority of these contaminants, so the extent of the impact on the development and implementation of remedial strategies won’t be clear for a while.  However, at minimum, the requirement to sample all environmental media (except spoil vapor) could have significant impacts on the cost, complexity, and duration of at least the investigation phase of remediation projects in New York, and may also complicate due diligence issues.

Stay tuned as we continue to follow these important developments impacting NYSDEC cleanup programs, as well as the ongoing developments in other states making moves towards regulating PFAS chemicals in the absence of federal drinking water or cleanup standards for the time being.