Per- and Polyfluoroalkyl Substances

The regulatory and policy developments surrounding per- and polyfluoroalkyl substances (PFAS) are many.  Scientific knowledge and more specifically toxicological data continue to lag.  We post regular updates to our website, including information regarding policy, regulatory proposals, enforcement, and more.

On June 15, 2022, the United States Environmental Protection Agency (EPA) released new Health Advisory Limits (HALs) for four per-and polyfluoroalkyl substances in drinking water.  The new HALs are significantly lower than the previous EPA advisory levels.  In fact, the limits for two of the PFAS compounds are lower than current method detection limits at commercial laboratories.

• Interim updated health advisory for PFOA = 0.004 ppt
• Interim updated health advisory for PFOS = 0.02 ppt
• Final health advisory for GenX chemicals = 10 ppt
• Final health advisory for PFBS = 2,000 ppt

*PFOA = perfluorooctanoic acid
*PFOS = perfluorooctanesulfonic acid
*PFBS = Perfluorobutanesulfonic acid

HALs in Parts Per Quadrillion

At 4 and 20 parts per quadrillion for PFOA and PFOS, respectively, we are in uncharted territory.  For perspective, a part per trillion is equivalent to one second over 32,000 years.  A part per quadrillion is equivalent to 2.5 minutes over 4.5 billion years, or the estimated age of the earth.  These new HALs are at levels so low that it is difficult to grasp.

HALs are not enforceable limits.  According to the EPA, “HA values/levels identify the concentration of a contaminant in drinking water at which adverse health effects and/or aesthetic effects are not anticipated to occur over specific exposure durations (e.g., 1 day, 10 days, a lifetime).”

Increased Liability

That said, because the EPA has established these low advisory levels, it would seem that finding PFAS even slightly above these levels would be the basis for further regulatory action or legal action.

The Law Firm, Miller Nash writes, “Although the newly released HALs are non-enforceable standards, they are likely to set benchmarks or points of comparisons for states and tribes seeking to implement or revise their own drinking water standards.  This may lead to greater exposure and liability for entities as federal and state environmental agencies look to crack down on the use of these PFAS.  To lower this exposure and risk, regulated industries may be forced to review their supply chains and manufacturing processes to ensure they either minimize or eliminate PFOA, PFOS, GenX, or PFBS from their operations.”

American Chemistry Council Comments

The American Chemistry Council (ACC) issued a Press Release responding to the EPA’s HALs.  Below are several quotes from their release.

“ACC supports the development of drinking water standards for PFAS based on the best available science.  However, today’s announcement of revised Lifetime Health Advisories (LHAs) for PFOA and PFOS and new Advisories for PFBS and the GenX chemicals (HFPO-DA) reflects a failure of the Agency to follow its accepted practice for ensuring the scientific integrity of its process.”

“LHAs assume a lifetime of exposure.  While they are non-regulatory levels, they will have sweeping implications for policies at the state and federal levels.  Getting the science right is of critical importance.”

“The Agency’s revised LHAs for PFOA and PFOS are based on toxicity assessments that are currently being reviewed by EPA’s Science Advisory Board.  Rather than wait for the outcome of this peer review, EPA has announced new Advisories that are 3,000 to 17,000 times lower than those released by the Obama Administration in 2016.  These new levels cannot be achieved with existing treatment technology and, in fact, are below levels that can be reliably detected using existing EPA methods.”

“PFAS are a diverse universe of chemistries with properties critical to a number of important uses, including renewable energy efforts, medical supplies integral to modern healthcare, and products critical to the resiliency of our supply chains.  Importantly, all PFAS chemistries are not the same.  According to EPA, approximately 600 PFAS chemistries are manufactured or in use today.  Each chemistry has its own unique properties and uses, as well as unique environmental and health profiles.”

“ACC is concerned that the process for development of these LHAs is fundamentally flawed.  We will continue to engage with EPA and policymakers at the state and federal level to advocate for strong, science-based policies that are protective of human health and the environment.”

PFAS as a CERCLA Hazardous Substance

Updating our February 1, 2022, blog, the Biden Administration has been sitting on a proposed CERCLA designation for PFOA and PFOS for some time.  This designation, should it go through, is fraught with complications.

In a June 23, 2022, article in Bloomberg Law they report, “An Environmental Protection Agency proposal to designate PFOA and PFOS would be the first time the agency has wielded the Comprehensive Environmental Response, Compensation, and Liability Act, known as CERCLA or the Superfund law, to designate chemicals as hazardous in the 40-plus years since its passage.”

“The plan, stuck in a White House review since January, raises concerns a hazardous designation would trigger reopening some remediated sites if significant enough levels of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) remain.  The regulations, if finalized, are expected to impose detailed reporting requirements and could disrupt ongoing litigation focused on settling responsibilities for cleanups, say attorneys tracking the issue.”

“‘If you have new contaminant data and there’s reason to believe your site contains a compound that wasn’t previously listed, then, absolutely those can be reopened,’ said Daniel Deeb, an attorney with Arent Fox Schiff LLP representing companies on CERCLA and other waste and cleanup litigation.”

The potential to reopen previously closed Superfund sites is daunting, especially in light of the current low advisory levels.  Would any previously closed site pass muster?

PFAS as a group of emerging contaminants has already brought significant uncertainty to every facet of the regulated community (i.e. water supply, POTWs, airports, fire departments, manufacturing, retail, waste disposal, real estate, to name but a few).  The introduction of these new HALs at concentrations that do not yet have scientific scrutiny or sound basis, in our opinion, only brings further uncertainty to the regulated community and fear to the public.

Given this low PFAS benchmark, it’s hard to imagine that we can achieve a “soft landing” with respect to establishing cleanup criteria and realistic regulations for PFAS.  Time, as they say, will ultimately tell.  That said, we have to find the “right” balance between sound science, human health, economic impact, and regulation.

If you need strategic technical assistance with a PFAS issue, we can help.  We have assisted our clients with a number of PFAS-related projects, up to and including litigation support.  If you have questions, contact Jeffrey Bolin, M.S. at 248-932-0228, Ext. 125.

This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years and has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

The blog was reviewed by Jeffrey Bolin, M.S.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, frequent speaker, and expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.  

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