United States Environmental Protection Agency

What are PFOA and PFOS?

Remember when everyone was in a tizzy about using Teflon or other non-stick cookware?  That had to do with the chemical PFOA (perfluorooctanoic acid), which is one of the most commonly found and most studied types of perfluoroalkyl substances (PFAS).  About 15 years ago reports on the toxicity of PFOA, along with resulting class action lawsuits, began hitting the news.  More studies identified other PFAS chemical with toxic effects, including PFOS (perfluorooctanesulfonic acid).

PFAS are manmade chemicals that repel both water and oil, which made them attractive for many commercial and industrial uses since the 1940s including numerous consumer products, such as carpets, clothing, non-stick pans, paints, cleaning products, and food packaging.  Firefighters, airports and the military use them in fire-suppressing foam.  They do not easily break down and are water soluble, so very low levels are found throughout the environment, including groundwater and other potable water sources.  This also means they accumulate in the body over time.  Studies have found that more than 98% of the US population has PFAS compounds in their blood.

They are also toxic, with adverse human health effects ranging from increased cholesterol to effects on infant birth weights to immune system or thyroid disruption and even cancer.  Studies continue to explore more about exposure risks in everyday life.  Most recently, a study found exposure routes associated with dental floss and food packaging.  That being said, the science continues to evolve and there are challenges with figuring out safe exposure levels for setting drinking water and cleanup standards.

What are the Regulators Doing?

Regulators have been paying attention.  In 2016, the United States Environmental Protection Agency (USEPA) released a Drinking Water Health Advisory of 70 parts per trillion (ppt) for either PFOA or PFOS, or when both are combined.  This is not an enforceable drinking water standard, but it has served as a guidepost for actions at the state level.  Around 20 states from across the country have adopted or proposed drinking water and/or cleanup standards, or are considering other actions.  These states include California, Vermont, Florida, New Jersey, New York, Massachusetts, New Hampshire, Texas, Minnesota, Michigan and Pennsylvania.

What Happened Last Week?

New Jersey.  The New Jersey Department of Environmental Protection (NJDEP) has developed draft interim groundwater standards for both PFOS and PFOA and is requesting public input on a number of technical focus questions concerning the availability of data, toxicology, epidemiology or other studies and information.  The proposed standards are for Class II-A aquifers, which means groundwater designated for use as potable water and is subject to health-based criteria that does not take into consideration remediation feasibility, treatability, or cost. This type of aquifer accounts for most of the State’s groundwater, so the impacts of the eventual new standards will be broad.  Comments are due to NJDEP by 5:00 pm on Tuesday February 19, 2019.  

Massachusetts.  The Massachusetts Department of Environmental Protection (MassDEP) held a public meeting last week to consider a petition filed by conservation and community groups requesting, among other things, a drinking water standard of 1 part per trillion (ppt) for each PFAS compound as a class. This is a remarkably low standard as compared to USEPA’s health advisory standard of 70 ppt, and even New Jersey’s preliminary drinking water guidance level of 40 ppt for PFOA and recommended level of 13 ppt for PFOS.   The petition also requests more community involvement and sampling to further advise the public about exposure risks in their communities.  MassDEP plans to issue its decision on the petition on Monday, Jan. 28, 2019.

 What’s Next?

Regulating PFAS compounds is a hot button issue in a lot of states.  Plenty of activity is expected this year in New Jersey, Massachusetts, California, New York and others.  We are already seeing impacts of this new focus on existing remediation projects and on the horizon there is certainly a reopener risk for completed remediation sites.  This is also an important due diligence issue.  Follow our blog for updates and join us for our Environmental Hot Topics CLE in April 2019 for more details.

 

 

On March 31, 2008, the United  States Environmental Protection Agency (“EPA”), under the authority of the federal Toxic Substances Control Act, issued new rules governing home improvement contractors and maintenance companies engaged in the renovation and repair of houses, child‑care facilities and schools constructed before 1978.  The purpose of the rule is to protect children from lead paint hazards in places they frequent.  EPA’s rules require that by April 2010, contractors and maintenance professionals performing renovation activities be certified and their employees trained by certified renovators.  The rules also require that these companies use safe work practices to eliminate airborne lead exposure from the renovation activities.

The rule applies to home improvement contractors, maintenance workers in multi‑family housing, painters and other trades engaged in renovation activities.  The covered facilities include residential, public or commercial buildings where children under the age of 6 are present on a regular basis, as well as all rental housing.  The rule applies to renovation, repair or repainting activity.  The only exceptions are (i) owner‑occupied housing where children under six or a pregnant woman do not reside; (ii) minor maintenance or repair activities affecting six square feet or less of lead based paint in a room or 20 square feet or less of lead based paint on the exterior of a building and (iii) renovations that do not involve the disturbance of lead based paint.  Determining whether a project is lead free must be made by a certified renovator using an EPA recognized test kit.

The rule prohibits certain unsafe work practices such as flame burning or torching; and sanding, grinding, or blasting with power tools.  It also prohibits the use of equipment not equipped with high efficiency vacuum attachments to minimize or eliminate airborne dust.

A certified renovator must be assigned to each renovation project to direct and train uncertified workers and to insure that all work is performed in accordance with applicable work practices and standards as outlined in the rules.  A renovator can become certified by successfully completing an EPA approved accredited training course.  To maintain the certification, a person must complete an accredited refresher course every five years.

While these regulations directly impact the companies doing the renovations, property owners must remember that they are ultimately responsible for the safety of their tenants.  It is imperative, therefore, that property owners make sure that the contractor intends to comply with the EPA’s regulations and minimize lead hazards during the work.  Any contract between the property owner and renovation contractor should, at a minimum, include a provision requiring the contractor to comply with all laws during the performance of the work and an indemnification provision whereby the contractor agrees to defend and indemnify the property owner from lawsuits arising from the contractor’s work.  Since an indemnification is only as good as the company’s assets, a property owner is well advised to require the contractor to have insurance naming the property owner as an additional named insured on the policy.  As an additional named insured, the property owner will be in a position to make a claim against the contractor’s insurance policy.  By taking these precautions, property owners will minimize their exposure to potential liability if the contractor fails to comply with these regulations.