The “PFAS Action Plan” announced by the United States Environmental Protection Agency (EPA) on February 14th was welcomed news for many.  However, we are still a long way from any certainty related to regulatory standards for per- and polyfluoroalkyl substances (PFAS).  In the meantime, PFAS litigation is ramping up.

The good news is, despite rumors to the contrary, the EPA is moving forward with the Maximum Contaminant Level (MCL) process for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).  These are two of the most-prevalent PFAS chemicals.  The EPA is also gathering and evaluating information to determine if regulation is appropriate for a broader class of PFAS.

While this is certainly good news, establishing MCLs is not going to be a quick process.  Don’t expect to see MCLs any time in the near future, as the last time the EPA established an MCL under the Safe Drinking Water Act (SDWA) was 1996.

You can find a concise summary of the EPA’s Action Plan in the National Law Review.

PFAS Litigation

While the federal legislative response is slowly grinding forward, litigation is not near as slow to advance.  Last year, we shared that the City of Newburgh, New York, was suing the US Air Force and others for PFAS contamination.  Since then, there have been numerous additional lawsuits and documented impacts to groundwater from PFAS.

New Mexico Farm Impacted by PFAS

In February, it was reported that a 4,000-head dairy farm in Clovis, New Mexico, was forced to dump their milk (15,000 gallons a day) and may have to cull their herd of dairy cows because their water was impacted with PFAS.  The owner of the dairy farm, Art Schaap, had to let go of 40 employees.  The suspected source of the PFAS contamination is the nearby Cannon Air Force Base.

Mr. Schaap is quoted as saying, “This has poisoned everything I’ve worked for and everything I care about.  I can’t sell the milk.  I can’t sell beef.  I can’t sell the cows.  I can’t sell crops or my property.  The Air Force knew they had contamination.  What I really wonder is:  Why didn’t they say something?”

According to news reports, the owner of the dairy has filed a lawsuit against manufacturers of products that contain PFAS.

PFAS at Dairy Farm

Cannon AFB, near Clovis, New Mexico is the suspected source of PFAS that has impacted a nearby dairy farm.

Attorney General’s Office Files Suit

New Mexico, apparently frustrated by the lack of progress in addressing the PFAS from Cannon Air Force Base, filed a lawsuit against the US Air Force.  The state is requesting immediate injunctive relief from the court that requires the Air Force to clean up contamination at the two bases and pay for abatement activities.

The complaint filed in New Mexico federal court alleges violations of the state’s Hazardous Waste Act and that PFAS contamination constitutes an imminent and substantial danger to communities on and off base.

Maine Farm Impacted by PFAS

In Maine, a 100-year-old farm is impacted by PFAS as well.  The source of PFAS in this case is suspected to be biosolids.  The biosolids (sludge) from local wastewater-treatment plants has long been added to farm fields as a soil amendment, and it helped municipalities avoid the cost of landfill disposal.

The owner of the farm, Fred Stone, said, “Besides the filtration system and the feed, our costs include every bill for investigating and testing the water and monitoring the milk, and the loss to the value of our real estate.  This whole thing has been a nightmare.”

States Taking Action

As the EPA continues to move forward with their action plan, states are busy developing their own action plans.  According to an article in E&E News, at least seven states have policies or have indicated they are pursuing policies stricter than the EPA’s current health advisory level of 70 parts per trillion for PFOA and PFOS.  These states include Alaska, California, Minnesota, New Hampshire, New Jersey, and Vermont.  And Michigan’s Governor, Gretchen Whitmer, recently directed the Michigan Department of Environmental Quality to begin developing drinking water standards for PFAS chemicals.

Because of Michigan’s high-profile PFAS sites, the state has been ahead of the “PFAS curve” for some time.  Michigan is also evaluating PFAS contamination at Department of Defense (DOD) sites in the state.  Requests to the DOD to limit PFAS in surface water to 12 ppt did not go well.  As reported in MLive, “In a Dec. 7 letter, the Air Force claims that federal sovereign immunity allows it to disregard the Michigan Department of Environmental Quality’s attempt to force its compliance with a regulation that caps the amount of PFAS chemicals entering surface water.”

Dragun Provides PFAS Expertise

Dragun is experienced in a variety of PFAS issues, from developing best management practices for PFAS-containing materials to assessment and remediation of PFAS chemicals in groundwater.  If you have questions or need assistance with a PFAS-related issue, please contact our senior environmental engineer, Matthew Schroeder, P.E., at 248-932-0228, Ext. 117.