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EPA and State Action to Regulate PFAS in Drinking Water Imposes Potentially Significant Costs on Water Systems

June 12, 2018

Momentum to regulate to minute levels a common contaminant found in water systems throughout the United States is growing quickly at the federal, state, and local levels. Perfluorinated compounds (PFAS) are a generic term for a family of perfluoroalkyl acids, synthetic chemicals that have many useful properties, including fire resistance and oil, stain, grease, and water repellency.[1] The two most widely known PFASs are perfluorooctanoic acid (PFOA) and perfluorooctane sulfate (PFOS). PFASs are, or have been, found in firefighting foams, wire insulation, cleaners, textiles, apparel, carpet, leather, paper, and paints. While many of these chemicals have been in use since the mid-20th century, recent awareness of their potentially adverse health effects has brought them to the attention of environmental and health regulators. The costs of treating PFAS at the wellhead, or of obtaining alternate sources of clean drinking water are significant, especially to the often-small water systems that supply residents of communities near source areas. Communities near existing or shuttered military bases, airports, and firefighting training facilities have been the hardest hit. The public health impacts of PFAS are only beginning to be understood, but the risks are high enough that the U.S. Air Force projects it will cost them $2 billion to clean up PFAS-contaminated water.[2]

Under public pressure to act, EPA has agreed to publish binding regulatory limits for PFAS in drinking and ground water this year. Numerous states are also developing binding regulations for PFAS chemicals. Some states have already begun statewide testing for PFASs, including several hundred water systems in Washington state. If found at levels exceeding future federal and state standards, water supply systems may be forced to treat or, in some cases, replace their water supplies. Litigation has already been brought by water systems to recover their costs from the manufacturers and users of PFAS compounds, and PFAS litigation can be expected to increase exponentially in the next few years.

This article summarizes recent federal and state developments that are particularly relevant to municipalities and other water providers, including recent litigation brought on behalf of municipal and private water suppliers to recover the costs of treating and replacing PFAS-contaminated water systems – which could run, for individual water systems, into the millions or tens of millions of dollars.

Federal Developments

EPA has established non-binding drinking water health advisories for PFOA and PFOS, 70 parts per trillion,[3] and has moved to include at least one PFOA-contaminated site (Hoosick Falls, New York) on the Superfund National Priorities List. Congressional representatives from districts impacted by PFAS contamination have also worked to secure funding for Navy and Air Force cleanup of PFASs and a health impact study of PFOA and PFOS in the latest National Defense Authorization Act, which President Trump signed in December 2017.[4]

Recently, the Trump administration has been criticized for blocking publication of an Agency for Toxic Substances and Disease Registry study that reportedly would have shown that PFAS chemicals endanger human health at a far lower level than the EPA health advisory limits.[5]

Faced with this criticism, EPA Administrator Scott Pruitt announced in May 2018 several planned actions on PFAS chemicals, including:

  • Establishing a binding maximum contaminant level (MCL) for PFOS and PFOA “in earnest;”
  • Classifying PFOA and PFOS as “hazardous substances” under CERCLA and developing groundwater cleanup levels “by the fall of this year” to guide the remediation of PFAS-contaminated sites;
  • “Tak[ing] action in close collaboration with our federal and state partners to develop toxicity values for GenX and PFBS,” two other types of PFAS, “by December of this year;” and
  • Visiting Michigan, New Hampshire, and other states affected by PFAS contamination to aid in drafting a “national PFAS management plan” “that will be done by the fall of this year.” [6]

While these commitments have not yet translated into concrete action, Director Pruitt has elevated the expectations of many for EPA action on PFAS in the near future.

State Developments

State legislatures and agencies have taken widely varied approaches to regulating PFAS chemicals. For example, Vermont, New Hampshire, Michigan, and Alaska are leading the way in state regulation of PFAS chemicals as hazardous substances, as all four states have established binding cleanup levels for PFOA and PFOS.[7] At least one state, New Jersey, is finalizing binding drinking water standards for two PFAS chemicals,[8] and several states have adopted advisory levels for drinking water similar to EPA’s health advisory limits of 70 parts per trillion.[9]

Several states have also taken steps to reduce the introduction of PFAS chemicals into the environment. In November 2017, California listed PFOA and PFOS on the Proposition 65 list due to their developmental toxicity. In November 2018, businesses in California will be required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to PFOA or PFOS, unless the business can show that the anticipated exposure level will not pose a significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm.[10] Similarly, Washington’s Children’s Safe Products Reporting Rule requires manufacturers to report annually to the Washington State Department of Ecology (Ecology) the presence of Chemicals of High Concern to Children, including PFOS and PFOA, in children’s products offered for sale in Washington.[11] In addition, both New York and Washington have placed restrictions on the sale and use of firefighting foam containing PFOA or PFOS.[12]

For an overview of other notable state efforts to regulate PFAS, see our prior article: Emerging Contaminants Update: Uncertainty Remains Despite Regulatory Action.

Washington State Developments

Drinking Water Testing in Washington

So far, PFASs above the EPA health advisory limit have been found in wells associated with the City of Issaquah, Joint Base Fort Lewis McChord, the Naval Air Station on Whidbey Island, and Fairchild Air Force Base near Spokane.[13] Eighty percent of Washington residents are served by large public water systems that have been tested for PFAS; however, there are nearly 4,000 Group A (large), and over 13,000 Group B (small) public water systems in the state that have not been tested.[14]

The Washington State Department of Health (Health) recently announced that it will be conducting additional testing for perfluorinated compounds at several hundred of these untested water systems. Health has received $235,000 for this initial sampling and for providing assistance to communities with drinking water contamination.[15] Testing all public drinking water supplies would require much more funding; for example, Health estimates that a three-year effort to test 24,000 samples from all Group A and Group B public water systems would cost more than $8 million.[16]

As more testing is conducted for PFAS chemicals, testing capabilities improve, and public awareness of these chemicals grows, evidence of PFAS contamination to drinking and ground water will continue to emerge, both in Washington and throughout the country.

New Legislation in Washington

In its latest session, the Washington State Legislature passed two laws designed to reduce PFAS sources in the business and natural environments.[17] The new laws do not, however, address liability for past PFAS releases to the environment.

ESSB 6413: PFAS in Firefighting Foam

ESSB 6413 bans the use of firefighting foam containing PFAS for training purposes. After July 1, 2018, manufacturers must notify purchasers when PFAS is present in firefighting personal protective equipment. After July 1, 2020, manufacturing, distributing, or selling firefighting foam containing PFAS is prohibited. This restriction does not, however, apply to firefighting foam use by the military or at Federal Aviation Administration-certified airports, petroleum refineries and terminals, or large chemical plants. The law directs Ecology to help other state agencies and local governments avoid purchasing firefighting foam that contains PFAS and to give preference to firefighting personal protective equipment that does not contain PFAS.

ESHB 2658: PFAS in Food Packaging

This law directs Ecology to publish the findings of an alternatives assessment that evaluates PFAS replacements for food packaging made from paper or other plant fibers by January 2020. The alternatives assessment will follow the Interstate Chemicals Clearinghouse guidelines and include an external peer review. After January 2022, PFAS may not be added to food packaging made from paper or other plant fibers if the alternatives assessment identifies multiple safer alternatives that meet certain requirements. If no safer alternatives are identified, Ecology will annually update the review. If safer alternatives are not identified by 2020, Ecology must review and report annually until safer alternatives are identified. The ban becomes effective two years after Ecology determines that safer alternatives exist.

Washington’s Chemical Action Plan

In 2016, Ecology and Health began developing a Chemical Action Plan (CAP) for PFASs. 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.[18] The PFAS CAP began in earnest in August 2017, and the Interim CAP recommendations (Interim CAP) were released in April 2018, with the final recommendations expected in winter 2019.[19]

The Interim CAP details four recommended actions:

  • Ensuring drinking water is safe by supporting drinking water limits for PFAS and prioritizing testing for drinking water at higher risk for contamination;
  • Managing environmental PFAS contamination by developing soil and ground water cleanup levels and developing best practices for managing cleanups;
  • Reducing risks to drinking water from firefighting foam by implementing Washington’s new law restricting the use and sale of PFAS-containing foam; and
  • Investigating other sources of PFAS that are most likely to pose a risk to human health and the environment, such as industrial releases, textiles, and cosmetics, and support research regarding safe alternatives to PFAS chemicals, particularly in food packaging.

The PFAS CAP Advisory Committee held one meeting in June 2018, and will hold another in October 2018, at which it discussed and took comments on the Interim CAP, discussed the work on PFAS that is currently underway, and generally reviewed PFAS issues, opinions, and questions. More information on past meetings, upcoming meetings, and the timeline going forward can be found at Department of Ecology’s PFAS Chemical Action Plan web page.

Drinking Water Standard Development in Washington

In October 2017, Washington’s State Board of Health (Board of Health) accepted a petition for rulemaking for PFAS in drinking water.[20] According to the Board of Health, the rulemaking may include requirements for monitoring, recordkeeping and reporting, follow-up actions, and other associated requirements for PFAS and other unregulated contaminants with established state advisory levels. The Board of Health states that revisions are intended to improve public health protection by setting a regulatory standard for PFAS chemicals in Washington for Group A public water systems.

While the Board of Health has not given a timeline for this rulemaking, it has stated that it will use “a collaborative rule making approach” and will “keep stakeholders and interested parties informed of the rule development through email, and posting information on the department’s rule making websites.”[21]

In the meantime, the Interim CAP encourages water systems to implement options to meet the EPA health advisory level for PFOA and PFOS of 70 ppt until state rulemaking is complete. The Interim CAP also states that Ecology and Health intend to provide technical assistance to public water systems for talking to the public about contamination, mitigation options, and monitoring.

Cleanup Standard Development

Currently there are no cleanup regulatory standards in Washington to determine the extent to which a site with PFAS contamination requires cleanup, nor have best practices for conducting such a cleanup been established. Ecology has begun to develop cleanup levels for PFOA and PFOS, and this work will be informed by the findings of the Board of Health and Health as they consider establishing drinking water standards or advisories.

Dealing with Treatment and Compliance Costs

Dealing with PFAS contamination will be an ongoing challenge for municipalities and drinking water suppliers. First, there are the regulatory requirements, which are still evolving. But second, there are the costs of complying with these future regulatory requirements, which could run to millions of dollars for impacted systems.

Some water system operators may opt for treatment, but treatment at the wellhead may not always be technically feasible or practical. Some wells may have to be pulled out of service, and it may be necessary to purchase water from nearby systems that are not contaminated, at greater costs. It may be less costly to drill wells into a deeper aquifer, if it has avoided contamination, or it may be more cost-effective to relocate wells at some distance from the contamination. All these potential solutions have costs.

It is possible that historic comprehensive general liability insurance policies may provide coverage for the costs of investigating and, if necessary, restoring contaminated wells. It is also possible that there may be valid claims against the manufacturers of PFAS products, and at least one such case has been filed.[22] Claims may also be brought against the entities that caused the contamination. Several public water providers have sued manufacturing facilities contaminating their water supplies with PFAS chemicals;[23] a Massachusetts town has reached a settlement in a lawsuit against a local fire training academy for PFAS contamination of drinking water;[24] and Newburgh, New York and Martinsburg, West Virginia have both taken steps to sue the United States for alleged PFAS contamination stemming from military operations.[25]

Conclusion

The challenges a particular water system impacted by PFAS will face depend on its unique circumstances. Therefore, water providers should seek technical and legal assistance to determine if PFAS contamination exceeds advisory levels and whether response actions are necessary. Keeping tabs on the federal regulatory politics may also prove important, as EPA has recently promised large changes to the treatment of these chemicals at the federal level. The regulatory landscape is changing quickly, and those impacted need to stay informed and engaged.

Marten Law represents several municipal clients dealing with PFAS contamination, particularly to drinking water. Jeff Kray and Sarah Wightman have written on the topic in various publications, including the Spring 2018 edition of the American Bar Association, Section of Environment, Energy, and Resources publication Natural Resources & Environment. Ms. Wightman will be speaking about the legal issues surrounding PFAS chemicals at the 30th Annual Texas Environmental Superconference this August.

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

[1] For more information about perfluorinated compounds, see our prior pieces in this newsletter: Emerging Contaminants Cause Regulatory Uncertainty for Water Suppliers and Landowners; Emerging Contaminants Update: Uncertainty Remains Despite Regulatory Action; and The True Cost of Scotchgard: 3M to Pay Minnesota $850 Million in Perfluorochemical Settlement.

[2] U.S. Air Force Civil Engineer Center, Perfluorinated-Compounds FAQs, http://www.afcec.af.mil/What-We-Do/Environment/Perfluorinated-Compounds/FAQs/#Investigation/Mitigation%20Cost.

[3] See U.S. EPA, Drinking Water Health Advisory for Perfluorooctanoic Acid (PFOA) (May 2016), available at https://www.epa.gov/sites/production/files/2016-05/documents/pfoa_health_advisory_final_508.pdf; U.S. EPA, Drinking Water Health Advisory for Perfluorooctane Sulfonate (PFOS) (May 2016), available at https://www.epa.gov/sites/production/files/2016-05/documents/pfos_health_advisory_final_508.pdf.

[4] See, e.g., Senate Amendments 967 and 999 to H.R. 2810, 115th Cong. (2017).

[5] Annie Snider, “White House, EPA headed off chemical pollution study,” Politico (May 14, 2018), https://www.politico.com/story/2018/05/14/emails-white-house-interfered-with-science-study-536950.

[6] Corbin Hiar, “EPA bars reporters from summit on politically toxic chemicals, Greenwire (Mary 22, 2018), https://www.eenews.net/greenwire/2018/05/22/stories/1060082387.

[7] Vermont has added liquid wastes containing PFOA and/or PFOS in concentrations greater than 20 parts per trillion (0.00002 micrograms per liter) to its list of hazardous wastes, VHWMR § 7-211, and has finalized primary groundwater quality standards for PFOA and PFOS, at 0.02 micrograms per liter, Vermont Groundwater Protection Rule and Strategy, Appendix 1, Table 1. New Hampshire also has an ambient groundwater quality standard of 0.07 parts per billion (0.07 micrograms per liter) for combined PFOA and PFOS. Env-Or 603.03(c). The Michigan Department of Environmental Quality set a cleanup standard of 70 parts per trillion (0.07 micrograms per liter) for combined PFOA and PFOS in groundwater used for drinking water, see Michigan Department of Environmental Quality, State Takes Action to Strengthen Environmental Criteria in Response to PFAS Contamination, http://www.michigan.gov/deq/0,4561,7-135--457220--,00.html (Jan. 9, 2018), and Alaska has set a standard of 0.4 micrograms per liter of PFOS and/or PFOA in groundwater and various levels for cleanup of PFOS and PFOA in soil, see 18 AAC 75.341, 345.

[8] In November 2017, the New Jersey Department of Environmental Protection (DEP) announced it would accept the New Jersey Drinking Water Quality Institute’s recommended drinking water standard of 14 parts per trillion for PFOA. DEP has also formally proposed a standard of 13 parts per trillion for perfluorononanoic acid (PFNA). DEP News Release: Christie Administration Takes Action to Enhance Protection of New Jersey’s Drinking Water, Nov. 1, 2017, http://www.nj.gov/dep/newsrel/2017/17_0104.htm.

[9] Vermont’s health advisory level for drinking water is 20 parts per trillion; Minnesota has adopted guidance values of 35 parts per trillion for PFOA and 27 parts per trillion for PFOS in drinking water; and Maine has adopted EPA’s health advisory limits wholesale. See Vermont Health and the Environment, Perfluorooctanoic Acid (PFOA) in Drinking Water, http://www.healthvermont.gov/health-environment/drinking-water/perfluorooctanoic-acid-pfoa, (last visited Sept. 13, 2017); Minnesota Department of Health, News Release: MDH issues new guidance on chemicals in some private wells, city water in East Metro, Bemidji (May 23, 2017); Maine CDC, Maximum Exposure Guidelines (MEGs) for Drinking Water, (Dec. 31, 2016). Connecticut has also established an “action level” for perfluorinated alkyl substances in drinking water, but it is unique in that the level is 0.07 µg/L for the sum of five perfluorinated compounds: PFOS, PFOA, PFNA, PFHxS, and PFHpA. Connecticut Dep’t of Public Health, Action Level List for Private Wells, (Feb. 2013). Pennsylvania is considering binding drinking water standards for PFOA, see Jon Hurdle, PA environmental regulators to consider health limits for PFOA, NPR: State Impact, https://stateimpact.npr.org/pennsylvania/2017/08/17/pa-environmental-regulators-to-consider-health-limits-for-pfoa/ (last visited Dec. 8, 2017); however, as of February 2018, Pennsylvania has not approved a binding standard.

[10] CA Health and Safety Code §§ 25249.6, 25249.10.

[11] See WAC 173-334-130; Washington Dep’t of Ecology, Children’s Safe Products Reporting Rule: Chemicals of High Concern to Children Proposed for Addition or Deletion during the 2017 Rule Update, (Sept. 2017).

[12] See Adoption of Final Rule: 6 NYCRR Part 597; ESSB 6413.

[13] Interim CAP at 6.

[14] Group A public water systems serve more than 15 connections and more than 25 people for 60 or more days per year. Group B public water systems serve fewer than 15 connections and fewer than 25 people per day. See Interim CAP at 7, 13.

[15] See Interim CAP at 13.

[16] Interim CAP at 13.

[17] See ESSB 6413; ESHB 2658; Interim CAP at 4-5.

[18] See Wash. Dep’t of Ecology and Wash. Dep’t of Health, PBT Initiative Overview (Jan. 7, 2015) at 9, available at http://www.ecy.wa.gov/programs/hwtr/rtt/pbt/docs/Meeting1Slides_Jan.7.2016.pdf.

[19] The Interim CAP can be found at https://fortress.wa.gov/ecy/publications/documents/1804005.pdf.

[20] See Washington State Department of Health, Rule-Making Activities—Office of Drinking Water, https://www.doh.wa.gov/CommunityandEnvironment/DrinkingWater/RegulationandCompliance/RuleMaking (last visited May 21, 2018).

[21] See id.

[22] See e.g. Emerald Coast Utilities Auth. v. 3M Co., 746 F. Supp. 2d 1216 (N.D. Fla. 2010).

[23] See e.g. W. Morgan-E. Lawrence Water & Sewer Auth. v. 3M Co., 208 F. Supp. 3d 1227 (N.D. Ala. 2016); Little Hocking Water Ass’n, Inc. v. E.I. du Pont Nemours & Co., 91 F. Supp. 3d 940 (S.D. Ohio 2015); Emerald Coast Utilities Auth. v. 3M Co., 746 F. Supp. 2d 1216 (N.D. Fla. 2010).

[24] Geoff Spillane, “County to pay Barnstable more than $3M in settlement,” Cape Code Times (Jun. 28, 2017), available at http://www.capecodtimes.com/news/20170628/county-to-pay-barnstable-more-than-3m-in-settlement.

[25] See Marie J. French, Newburgh takes first step in suing state, feds over water contamination,” Politico (Feb. 21, 2018), https://www.politico.com/states/new-york/albany/story/2018/02/21/newburgh-takes-first-step-in-suing-state-feds-over-water-contamination-268671; Matthew Umstead, “Martinsburg OK’s federal claim in water contamination case,” Herald-Mail Media (May 11, 2018), https://www.heraldmailmedia.com/news/tri_state/west_virginia/martinsburg-ok-s-federal-claim-in-water-contamination-case/article_3645983e-5573-11e8-90f1-f723f11afd86.html.

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