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Emerging Contaminants Cause Regulatory Uncertainty for Water Suppliers and Landowners

March 9, 2017

Water suppliers and landowners are increasingly contending with a new generation of persistent contaminants, particularly perflourinated compounds. Perfluorinated compounds are chemicals that have historically been used in a variety of industrial and consumer products. They are now found worldwide in the environment, wildlife, and even humans. These chemicals are associated with adverse health effects. While federal and state regulators are beginning to explore regulatory options for these emerging contaminants, incomplete guidance and cleanup standards are creating regulatory uncertainty for a broad range of water suppliers and landowners throughout the country. This uncertainty is causing water suppliers to incur water treatment and other remedial action costs without clear direction on source control and cost recovery. This uncertainty also fails to provide benchmarks for contaminated property owners interested in conducting meaningful remediation, and ultimately delays cleanup that stakeholders and regulatory agencies are beginning to acknowledge is necessary.

What Are Perfluorinated Compounds?

Perfluorinated compounds (PFCs or PFASs) are a generic term for a family of perfluoroalkyl acids (PFAAs), synthetic chemicals that have many useful properties, including fire resistance and oil, stain, grease, and water repellency.[1] The two most widely known PFCs are perfluorooctanoic acid (PFOA) and perfluorooctane sulfate (PFOS).[2] PFCs are found in firefighting foams, wire insulation, cleaners, textiles, apparel, carpet, leather, paper, and paints.[3] Because of their widespread use and persistence (i.e., they do not degrade), PFCs are now found worldwide in the environment, wildlife, and humans.[4] In a Washington Department of Ecology (Ecology) study, PFCs were found in a wide range of environmental media in Washington, including surface water, wastewater treatment plant effluent, fish tissue, and osprey eggs.[5] According to industry human biomonitoring data, PFOA is also found in the blood of the general population in all geographic regions of the United States.[6]

Environmental and Health Impacts

The widespread presence of PFC chemicals may be harmful to the environment and human health. With exposure, PFCs accumulate in the blood and liver. Because PFCs degrade slowly, they can bioaccumulate in terrestrial food webs and in marine mammals, meaning that organisms higher in the food chain have higher PFC levels than those lower in the food chain.[7]

In addition to environmental impacts, studies have shown that PFCs, specifically PFOA and PFOS, are associated with adverse health effects. Peer-reviewed studies on laboratory animals and epidemiological studies of human populations indicate that exposure to PFOA and PFOS over certain levels may result in developmental effects to fetuses and infants, cancer, and impacts to the liver, thyroid, immune system, and cholesterol changes.[8]

Drinking Water Contamination

Although PFCs are ubiquitous in the environment in low concentrations, the main pathways for human exposure include ingestion of contaminated food and water and inhalation of contaminated air.[9] PFC contamination is of special concern in drinking water. Because PFCs do not easily degrade, they can accumulate in the blood and liver, making consistent exposure to even low concentrations potentially harmful.[10] PFC contamination in drinking water is especially challenging for municipalities and other public water suppliers, which supply drinking water to eighty six percent of the population in the United States.[11]

PFC contamination of drinking water is widespread. An August 2016 study found that the drinking water for at least 6 million U.S. residents contains PFCs in excess of U.S. Environmental Protection Agency (EPA) health advisory levels.[12] The two main sources of PFC contamination in drinking water are manufacturing plants and facilities using aqueous film-forming foams.

Many manufacturing facilities used PFCs starting in the 1950s. In Parkersburg, West Virginia, DuPont used PFOA to make Teflon for over 40 years. At this facility, DuPont released PFOA powder into the Ohio River and sludge containing PFOA into digestion ponds near the facility. PFOA entered the local water table, contaminating drinking water for more than 100,000 people.[13] In Hoosick Falls, New York, a manufacturing plant used PFOA to make stain resistant fabric. In a personal injury suit, the plaintiff alleges that employees discharged PFOA by dumping trays of cleaning residue containing PFOA into drains, which contaminated soil, groundwater, and ultimately the town’s public water supply.[14] Similar drinking water contamination originating from manufacturing plants has been discovered across the country, including in Minnesota, Alabama, Vermont, and New Hampshire.[15]

In addition, PFC contamination of drinking water is common on and around military installations and civilian airports due to the use of aqueous film-forming foams used to fight fires.[16] For example, the U.S. Air Force has identified 200 facilities where there may be PFC releases, many of which are now undergoing cleanup for contaminated drinking water.[17] To date, the Air Force and Navy have identified at least thirteen bases with contaminated drinking water in Alaska, California, Colorado, Delaware, Michigan, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Washington.[18]

Because cleanup of PFC-contaminated drinking water is costly, municipalities, private well owners, and other water users seek recovery from those parties responsible for releasing PFCs to the environment. Such actions are difficult given current regulatory standards.

Regulatory Status

PFCs are currently classified as emerging contaminants at both the federal and state levels, meaning there are no numeric standards for cleaning up PFCs in soil or water. Both federal and state agencies have determined that PFCs are a known environmental and health risk and have taken steps to begin regulating PFCs; however, that process is incomplete, causing uncertainty for a broad range of water users.

Federal

In the late 1990s, EPA received information indicating that PFOS in particular was widespread in the blood of the general population and presented concerns for persistence, bioaccumulation, and toxicity.[19] Following discussions between EPA and 3M—the sole manufacturer of PFOS in the United States and the principal manufacturer in the world—the company terminated production of these chemicals in May 2000.[20] In 2002, EPA took action to limit future manufacture and importation of PFOS and took similar action in 2007 with regard to an additional 183 PFCs.[21] In addition, EPA’s New Chemicals program reviews alternatives for PFOA and related chemicals before they enter the marketplace to ensure that replacement chemicals do not present an unreasonable risk to health or the environment.[22]

In May 2016, EPA established drinking water health advisories for PFOA[23] and PFOS,[24] setting the advisory level at 70 parts per trillion. These advisories provide technical information to state agencies and other public health officials on health effects, analytical methodologies, and treatment technologies associated with drinking water contamination; however, complying with these drinking water health advisories is not mandatory.

EPA has not yet listed any PFCs as hazardous under relevant regulatory schemes, such as the Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Emergency Planning and Community Right-to-Know Act (EPCRA), or Clean Air Act (CAA).[25] Despite the lack of a formal listing, EPA has moved to include at least one PFOA-contaminated site (Hoosick Falls, New York) on the Superfund National Priorities List (NPL). In the news release regarding the proposed listing, EPA noted that “PFOA does not break down easily and therefore is very persistent in the environment. Its toxicity and persistence in the environment can pose adverse effects to human health and the environment.”[26] Proposing a PFOA site for addition to the NPL could be a model for how federal hazardous waste laws could be used to clean up PFC contamination throughout the United States.

Washington

The Washington State Departments of Ecology and Health are developing a Chemical Action Plan (CAP) for PFCs.[27] A CAP generally includes analyzing the chemistry, sources, health effects, and environmental data of the chemical at issue, as well as a regulatory and economic analysis coupled with recommendations.[28] An advisory committee[29] began meeting in January 2016 and is assisting the agencies with collecting information and identifying solutions.[30] A draft CAP is expected to be ready for public review and comment and then finalized in 2017.[31] Although the CAP process is important, it does not necessarily result in a substantive rule or policy change.

Although Washington has begun to explore regulatory options through the CAP process, Ecology has not clarified that PFCs qualify as “hazardous” under the Model Toxics Control Act (MTCA), the main mechanism for toxic waste cleanup in Washington. MTCA liability for cleanup attaches to “hazardous substances,” which are defined as:

  1. “Dangerous waste” as defined by law or rule;
  2. “Extremely hazardous waste” as defined by law or rule;
  3. “Hazardous substances” as defined by law or rule;
  4. Any hazardous substance under federal cleanup law;
  5. Petroleum or petroleum products; and
  6. Any substance determined by Ecology rule to present a threat to human health or the environment if released into the environment.[32]

PFCs arguably qualify as hazardous substances under one or more of these categories. For example, “dangerous wastes” are defined as “any discarded, useless, unwanted, or abandoned substances…which are disposed of in such quantity or concentration as to pose a substantial present or potential hazard to human health, wildlife, or the environment because such wastes…have mutagenic, teratogenic,[33] or carcinogenic[34] properties.”[35] As discussed above, peer-reviewed studies indicate that exposure to PFOA and PFOS may result in adverse health effects, including developmental effects to fetuses during pregnancy and cancer.[36] This means that certain PFCs likely qualify as “dangerous waste” under current Washington law, even though Ecology has yet to formally regulate them as such.

In addition to the uncertainty of whether PFCs qualify as “hazardous” under Washington law, Ecology has failed to promulgate cleanup standards for PFCs. These standards would clarify the level at which PFCs are dangerous to human health and the environment and would create enforceable limits at which point contamination must be removed. Cleanup standards would also give certainty to owners of contaminated sites who wish to remove PFC contamination, as Ecology could issue No Further Action opinions once cleanups are adequately completed.

Clearly regulating PFCs as hazardous substances and setting cleanup standards for PFCs would allow water suppliers and users to more easily compel investigations and remedial actions of PFC sources and recover costs incurred as a result of responding to PFC contamination, and give contaminated property owners a benchmark for sufficient cleanup which would facilitate source removal of these contaminants and ensure cleaner drinking water.

Other States

Unlike Washington and the federal government, several states have taken concrete regulatory steps with regard to PFCs. As a result of the PFOA contamination found in Hoosick Falls, New York has taken significant action to regulate PFC chemicals. In April 2016, New York issued an emergency rulemaking that listed PFOA and PFOS as hazardous substances. This action required the proper storage of the substances, limited releases to the environment, and enabled the state to use its legal authority and funds to investigate and clean up impacted sites.[37] The New York Department of Environmental Conservation has now finalized these rules, effective March 3, 2017.[38] In addition to listing PFOA and PFOS as hazardous, these regulations also prohibit the use of firefighting foam containing PFOA or PFOS after April 25, 2017.[39] New York has already used these regulations to issue at least three consent orders relating to the investigation and cleanup of PFOA.[40]

Similarly, in 2016, the Vermont Agency of Natural Resources and Department of Environmental Conservation found elevated levels of PFOA in Vermont drinking water near a former manufacturing facility. As a result, Vermont established an interim safety standard for PFOA in drinking water at 20 parts per trillion, lower than the U.S. EPA health advisory level.[41] Vermont has since added liquid wastes containing PFOA or PFOS in concentrations greater than 20 parts per trillion to its list of hazardous wastes[42] and has finalized primary groundwater quality standards for PFOA and PFOS, at 0.02 micrograms per liter.[43]

These steps taken by New York and Vermont will facilitate cleanup and regulation of PFOA and PFOS, prevent future contamination, and provide a roadmap for other states concerned about PFC contamination.

Developments

Personal Injury Lawsuits

As concerns about PFC contamination grow, those affected by the contamination are seeking to recover damages. Several lawsuits against polluters are underway, including personal injury actions brought by those who consumed contaminated drinking water against manufacturers who used PFC compounds in Hoosick Falls, New York, and Parkersburg, West Virginia. In February 2017, DuPont reached a $671 million settlement with approximately 3,500 plaintiffs in the Parkersburg case.[44] The plaintiffs in that case claimed injuries such as kidney cancer, testicular cancer, and thyroid disease resulted from drinking PFOA-contaminated drinking water caused by DuPont’s manufacturing facilities.[45] The settlement of the Parkersburg case may open the door to other lawsuits regarding injuries caused by PFC contamination.

Air Force Cleanups

As discussed above, the U.S. Air Force has identified 200 facilities where there may be PFC releases, many of which are now undergoing cleanup for contaminated drinking water.[46] To investigate the problem, the Air Force has spent $137 million, and is already spending millions more to treat water and provide alternate drinking water sources.[47]

Conclusion

As scientists and regulatory agencies assess potential risks and regulatory strategies, it is clear that the issue of how to deal with emerging contaminants such as PFCs is here to stay. The lack of cleanup standards and other binding regulations at the federal level and in most states has created confusion for those water suppliers and landowners dealing with PFC contamination. Until cleanup standards are promulgated nationwide, it will remain unnecessarily difficult for drinking water suppliers, owners of contaminated land, and others concerned about the potential public health consequences of PFCs to address the sources of PFC contamination and recover cleanup costs from responsible parties. Failure to provide standards may ultimately slow PFC cleanup and continue human and environmental exposure to chemicals that regulatory agencies recognize as dangerous but which have not yet been fully integrated into the hazardous waste regulatory structure.

For more information, please contact Jeff Kray, Sarah Wightman or one of the other attorneys in the Firm’s Water Quality, Water Resources, or Waste Cleanup practice groups.

[1] U.S. EPA, Per- and Polyfluoroalkyl Substances (PFASs) Under TSCA (last visited Jan. 10, 2017); Wash. Dep’t of Ecology, Perflorinated Compounds in Washington Rivers and Lakes (Aug. 2010) at 9.

[2] Wash. Dep’t of Ecology, Perflorinated Compounds in Washington Rivers and Lakes (Aug. 2010) at 9.

[3] U.S. EPA, Per- and Polyfluoroalkyl Substances (PFASs) Under TSCA (last visited Jan. 10, 2017).

[4] U.S. EPA, Per- and Polyfluoroalkyl Substances (PFASs) Under TSCA (last visited Jan. 10, 2017).

[5] Wash. Dep’t of Ecology, What are PFASs? (last visited Jan. 10). See also Wash. Dep’t of Ecology, Perflorinated Compounds in Washington Rivers and Lakes (Aug. 2010) at 9. This study is undergoing an update. See Wash. Dep’t of Ecology, Quality Assurance Project Plan: Statewide Survey of Per-and Poly-fluoroalkyl Substances in Washington State Rivers and Lakes (Apr. 2016).

[6] Perfluorooctanoic Acid (PFOA), Fluorinated Telomers; Request for Comment, Solicitation of Interested Parties for Enforceable Consent Agreement Development, and Notice of Public Meeting, 68 Fed. Reg. 73, 18629 (Apr. 16, 2003).

[7] Wash. Dep’t of Ecology, Perflorinated Compounds in Washington Rivers and Lakes (Aug. 2010) at 33.

[8] U.S. EPA, Fact Sheet PFOA & PFOS Drinking Water Health Advisories (Nov. 2016) at 2. See also U.S. EPA, Health Effects Support for Perfluorooctane Sulfonate (PFOS) (May 2016); U.S. EPA, Health Effects Support for Perfluorooctanoic Acid (PFOA) (May 2016).

[9] Gebbink, W.A., Berger, U., and Cousins, I.T., “Estimating human exposure to PFOS isomers and PFCA homologues: The relative importance of direct and indirect (precursor) exposure,” Environment International 74 160-169 (January 2015).

[10] See U.S. EPA, Drinking Water Health Advisory for Perfluorooctanoic Acid (PFOA) (May 2016); U.S. EPA, Drinking Water Health Advisory for Perfluorooctane Sulfonate (PFOS) (May 2016).

[11] U.S.G.S., Public-supply water use (last visited February 26, 2017).

[12] Hu, et al., “Detection of Poly- and Perfluoroalkyl Substances (PFASs) in U.S. Drinking Water Linked to Industrial Sites, Military Fire Training Areas, and Wastewater Treatment Plants,” Environmental Science & Technology Letters 3 (10) 344-350 (Aug.9, 2016).

[13] Nathaniel Rich, “The Lawyer Who Became DuPont’s Worst Nightmare,” The New York Times Magazine (Jan. 6, 2016).

[14] Donavan v. Saint-Gobain Performance Plastics, Complaint and Demand for Jury Trial (July 27, 2016).

[15] Lerner, S., “Lawsuits charge that 3M knew about the danger of its chemicals,” The Intercept (April 11, 2016); Yee, V., “Tainted-Water Worries Spread to Vermont Village,” The New York Times (March 14, 2016).

[16] Hu, et al., “Detection of Poly- and Perfluoroalkyl Substances (PFASs) in U.S. Drinking Water Linked to Industrial Sites, Military Fire Training Areas, and Wastewater Treatment Plants,” Environmental Science & Technology Letters 3 (10) 344-350 (Aug.9, 2016).

[17] See e.g. The Air Force and PFCs (last visited Jan. 10, 2017); Air Force Public Affairs, Frequently Asked Questions: PFOS/PFOA (Dec. 1, 2016); United States Air Force Air Force Civil Engineer Center, Action Memorandum for a Time-Critical Removal Action of PFC-Contaminated Water at Moose Creek, Alaska by Eielson Air Force Base, Alaska (Nov. 18, 2015); U.S. EPA, EPA Superfund Program: Willow Grove Naval Air and Air Reserve Station (last visited Jan. 10, 2017); U.S. EPA, EPA Superfund Program: Pease Air Force Base (last visited Jan. 10, 2017); Naval Air Development Center (8 Waste Areas) (last visited Jan. 10, 2017).

[18] Turkewitz, J., “Tainted Water Near Colorado Base Hints at Wider Safety Concerns,” The New York Times (July 25, 2016); Bernton, H., “Whidbey Island drinking-water wells polluted with firefighting chemicals near Navy airstrips,” The Seattle Times (March 3, 2017).

[19] U.S. EPA, Per- and Polyfluoroalkyl Substances (PFASs) Under TSCA (last visited Jan. 10, 2017).

[20] U.S. EPA, Per- and Polyfluoroalkyl Substances (PFASs) Under TSCA (last visited Jan. 10, 2017); Perfluorooctanoic Acid (PFOA), Fluorinated Telomers; Request for Comment, Solicitation of Interested Parties for Enforceable Consent Agreement Development, and Notice of Public Meeting, 68 Fed. Reg. 73, 18628 (Apr. 16, 2003).

[21] See U.S. EPA, Per- and Polyfluoroalkyl Substances (PFASs) Under TSCA (last visited Jan. 10, 2017); Perfluoroalkyl Sulfonates; Significant New Use Rule, 72 Fed. Reg. 194, 57222 (Oct. 9, 2007).

[22] U.S. EPA, New Chemicals Program Review of Alternatives for PFOA and Related Chemicals (last visited Jan. 10, 2017).

[23] See U.S. EPA, Drinking Water Health Advisory for Perfluorooctanoic Acid (PFOA) (May 2016).

[24] See U.S. EPA, Drinking Water Health Advisory for Perfluorooctane Sulfonate (PFOS) (May 2016).

[25] U.S. EPA, List of Lists (March 2015); U.S. EPA, Hazardous Wastes: Listed Wastes (last visited February 26, 2017).

[26] U.S. EPA, News Releases, “Corrected: EPA Proposes to Add Saint-Gobain Performance Plastics Site in Hoosick Falls, N.Y. to the Federal Superfund List,” (September 2016).

[27] Wash. Dep’t of Ecology, What are PFASs? (last visited Jan. 10, 2017).

[28] Wash. Dep’t of Ecology and Wash. Dep’t of Health, PBT Initiative Overview (Jan. 7, 2015) at 9.

[29] Wash. Dep’t of Ecology, PFAS CAP Advisory Committee (last visited Jan. 10, 2017).

[30] Wash. Dep’t of Ecology, What are PFASs? (last visited Jan. 10, 2017).

[31] Wash. Dep’t of Ecology, What are PFASs? (last visited Jan. 10, 2017).

[32] RCW 70.105D.020; WAC 173-340-200.

[33] “Teratogenic” means “of, relating to, or causing developmental malformations.” Merriam-Webster Dictionary.

[34] “Carcinogen” means “a substance or agent causing cancer.” Merriam-Webster Dictionary.

[35] RCW 70.105.010(a).

[36] U.S. EPA, Fact Sheet PFOA & PFOS Drinking Water Health Advisories (Nov. 2016) at 2. See also U.S. EPA, Health Effects Support for Perfluorooctane Sulfonate (PFOS) (May 2016); U.S. EPA, Health Effects Support for Perfluorooctanoic Acid (PFOA) (May 2016).

[37] New York Department of Environmental Conservation, “New York State’s Water Quality Rapid Response Team Continues Actions to Address Water Contamination Statewide,” (January 31, 2017) (last visited February 26, 2017).

[38] New York Department of Environmental Conservation, “Adoption of Final Rule: 6 NYCRR Part 597,” (last visited February 26, 2017).

[39] Id.

[40] Order on Consent and Administrative Settlement Index No. CO 4-20160519-01; Order on Consent and Administrative Settlement Index No. CO 4-20160212-18; Order on Consent and Administrative Settlement Index No. CO 4-20160415-79.

[41] Vermont Agency of Natural Resources, PFOA Memorandum regarding PFOA and PFOS interim standards, (December 23, 2016).

[42] Vermont Agency of Natural Resources, Hazardous Waste Management Regulations.

[43] Vermont Agency of Natural Resources, Groundwater Protection Rule and Strategy (Dec. 16, 2016).

[44] Greenwire, “DuPont settles in toxics case, opening door to future suits,” (February 14, 2017).

[45] Greenwire, “DuPont settles in toxics case, opening door to future suits,” (February 14, 2017).

[46] See e.g. The Air Force and PFCs (last visited Jan. 10, 2017); Air Force Public Affairs, Frequently Asked Questions: PFOS/PFOA (Dec. 1, 2016); United States Air Force Air Force Civil Engineer Center, Action Memorandum for a Time-Critical Removal Action of PFC-Contaminated Water at Moose Creek, Alaska by Eielson Air Force Base, Alaska (Nov. 18, 2015); U.S. EPA, EPA Superfund Program: Willow Grove Naval Air and Air Reserve Station (last visited Jan. 10, 2017); U.S. EPA, EPA Superfund Program: Pease Air Force Base (last visited Jan. 10, 2017); Naval Air Development Center (8 Waste Areas) (last visited Jan. 10, 2017).

[47] Turkewitz, J., “Tainted Water Near Colorado Base Hints at Wider Safety Concerns,” The New York Times (July 25, 2016).

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