PFAS Trends – New Emphasis By US EPA May Have Broad Implications

On October 18^th, the U.S. Environmental Protection Agency (EPA) announced the agency’s comprehensive Strategic Roadmap to confront PFAS contamination nationwide.  Below are some thoughts on what the future may hold:

1. PFAS monitoring and reporting are going to expand into many more areas of the regulated community (some have already started):
   • NPDES discharge permits
   • Sewer discharge permits to POTWs
   • Testing of biosolids (sewage sludge from POTWs) before land application at farms
   • TRI (Toxic Release Reporting) / community right-to-know reporting
   • Leachate and groundwater monitoring at landfills
2. There is a push to designate certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  If this occurs, there will be a significant trickle-down effect:
   • It would jump start the identification and remedial investigation of sites impacted by PFAS. 
   • It would likely allow the re-opening of closed/inactive cleanup sites.
   • It would also allow EPA and others to recover cleanup costs from potentially responsible parties.
   • It could lead to Natural Resource Damages suits from Federal/State agencies.
   • Remedial Investigations and cleanups would become more expensive due to significant additional specialized sampling, analytical and disposal costs.
3. Pennsylvania and other states currently use the current USEPA Health Advisory Limit (HAL) of 70ppt for PFOA and PFOS as the cleanup standard for these compounds in groundwater.  The EPA has announced plans for a more aggressive standard by 2023, and Pennsylvania regulators may set their own lower standards for certain PFAS compounds before that.  (Several states already have.)   This should be taken into account when conducting environmental due diligence for a property.  When testing groundwater at a property for PFAS, the assessment of potential liability should not only focus on whether PFAS concentrations are above current standards, but consider the likelihood of lower future standards – and should more importantly focus on whether those compounds were discharged from onsite operations or migrated from offsite sources.