In January, we discussed the rapidly-developing guidance related to per- and polyfluoroalkyl (PFAS) substances (see: PFAS Challenges, Concerns, and Developments). As my colleague, Matthew Schroeder, pointed out in that blog, these chemicals are pervasive in the environment, widely detected in blood serum samples, pose a health threat at some level yet to be determined, and pose environmental remediation challenges.

For these and other reasons, regulators and politicians are taking several steps (aggressive steps in some cases) toward addressing PFAS in the environment.

Recent Developments at the Environmental Protection Agency

Before being confirmed as the administer of the Environmental Protection Agency (EPA), Scott Pruitt said of these chemicals, “PFOA [perfluorooctanoic acid] needs to be addressed quickly whether under TSCA (Toxic Substance Control Act) or the Safe Drinking Water Act.” With the announcement of several initiatives, it appears that Mr. Pruitt is taking some of those promised steps to address the escalating concerns with respect to PFAS. Below are some of those announced efforts (the dates are in bold to indicate the ambitious timetable).

Governors Gather in Washington D.C. to Discuss PFAS

An invitation was sent to governors of 56 states and territories to join the EPA in Washington D.C. on May 22-23, 2018 at the National Leadership Summit to address PFAS. According to Scott Pruitt, “EPA’s leadership summit will bring together stakeholders from across the country to build on the steps we are already taking and to identify immediate actions to protect public health. Through this event, we are providing critical national leadership, while ensuring that our state, tribal, and local partners have the opportunity to help shape our path forward.”

Following the PFAS Summit, the EPA will travel to states and communities (during the summer of 2018) that are impacted by PFAS to “…further engage on ways the agency can best support the work that’s being done at the state, local and tribal levels.”

Evaluating Human Health Impacts of PFAS

As related to human health impacts of PFAS, the EPA is focused on identifying “the universe of PFAS currently being manufactured and used.” The EPA also states that they will develop human health toxicity values for GenX (trade name of a PFAS chemical manufactured by Dupont/Chemours) and Perfluorobutanesulfonic acid (PFBS) by July 2018. They will provide states with access to test data obtained under TSCA for GenX chemicals (acid and salt) by May 2018.

In an effort to reduce exposure to PFAS, the EPA will be updating the drinking water treatability database by July 2018 and develop groundwater cleanup recommendations by September 2018.

Michigan Aggressively Evaluates PFAS

As previously referenced, my colleague, Matthew Schroeder, is “close” to this issue with some active projects. Matt recently shared how Michigan is taking an aggressive approach in evaluating potential sources of PFAS. The current source evaluation effort that the state is requiring of Publically Owned Treatment Works (POTWs) means that industrial users are being requested to provide information about past PFAS use and potentially test discharges for PFAS.

The MDEQ held a series of regional meetings regarding the Industrial Pretreatment PFAS Initiative in March 2018.

The MDEQ has also provided a list of 24 suggested PFAS analytes. In providing the suggested list, they state the “list is not exhaustive but reflects a list of chemicals that commercial laboratories are able to analyze for at this time…” This admitted lack of a consistent list of PFAS chemicals is one of many complicating factors with respect to PFAS. The regulation and testing of PFAS-related chemicals has been largely limited to just a few chemicals, notably perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA).

Recall that Michigan adopted the lifetime health advisory of 70 parts per trillion (ppt) for PFOS and PFOA as a cleanup criterion for groundwater, making it a legally-enforceable limit in the state.

With respect to surface water in Michigan, the drinking and nondrinking water limits for PFOS are 11 and 12 nanograms per liter (ng/L), respectively. The drinking and nondrinking limits for water for PFOA are 420 and 12,000 ng/L, respectively.

Other Proposals to Address PFAS

There are far more questions than answers related to PFAS. Many states are gathering data and looking for the EPA to provide guidance. Other states are taking a much more strident approach. By one count, there were more than 100 proposals pending in 23 states regarding PFAS regulation.

What should I do?

Beyond monitoring federal and state regulatory developments with respect to PFAS, what can or should you do? It will vary depending on your industry; however, with the ubiquitous nature of these chemicals, PFAS is going to affect a number of businesses and business transactions. Below are some considerations.

  1. If you are buying commercial/industrial property or are involved in merger/acquisition activity, it might be wise to consider how PFAS could affect the transaction (a question for your legal counsel and your technical advisors).
  2. If your company will likely be assessed for the presence of PFAS, you might want to consider a communication strategy related to stakeholder outreach. When analyzing for concentrations in the ppt range, it’s relatively “easy” to have a positive result in the analysis.
  3. If a regulator is sampling at your company (wastewater discharge, monitoring well, stormwater discharge), consider splitting samples and/or carefully documenting the sampling. Low detection limits and the potential for contaminating the samples can lead to false positives, unnecessary scrutiny, and additional testing.

Of course, we’ll continue to update you as we learn more. If you need to get into the weeds on this issue, including the assessment and remediation of PFAS-related chemicals, I would encourage you to contact Matt. You can reach him at 248-932-0228, Ext. 117.