Manatt Phelps & Phillips LLP
Jeffrey J. Davidson, David L. McGrath and Craig A. Moyer
April 30, 2019
On April 25, 2019, the U.S. Environmental Protection Agency (EPA) released its Draft Interim Recommendations to Address Groundwater Contaminated with Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) for public review and comment. The comment period ends on June 10, 2019.
PFOA and PFOS are two substances within the much larger group of per- and polyfluoroalkyl substances (PFAS), man-made chemicals that historically were widely used and presently are used across the country every day in a wide array of consumer and industrial products. Water resources known to have been contaminated by PFOA and PFOS are associated with releases from manufacturing sites, industrial sites, fire/crash training areas, and industrial or municipal waste sites where products are disposed of or applied. PFAS are highly resistant to degradation and are extremely persistent in the environment as well as in organisms, including human beings.
In 2016, the EPA established lifetime health advisories of 70 parts per trillion (ppt) for both PFOA and PFOS, a nonregulatory level that represents a concentration of drinking water contaminants at or below which adverse health effects are not anticipated to occur over a lifetime. This EPA document provides “interim” “recommendations” for screening levels and preliminary remediation goals to inform final cleanup levels for PFOA and/or PFOS contamination of groundwater that is a current or potential source of drinking water. The EPA interchangeably refers to these most recent “recommendations” as “guidance”—reflecting the very preliminary nature of this step toward regulation by the agency. The EPA’s recommendations are intended to be a starting point for making site-specific decisions at sites undergoing federal cleanup under Comprehensive Environmental Response, Compensation, and Liability Act or federal corrective action under Resource Conservation and Recovery Act. The EPA notes that other federal, state and tribal cleanup programs may find the recommendations “useful.”
The EPA recommends using a screening level hazard quotient for non-cancer effects of 0.1, which yields a protective drinking water concentration for PFOA and PFOS currently set at 40 ppt. That concentration is below the cancer risk screening level of one in 1 million. While not a common toxicological approach, it is evident that the EPA does not want to drop a site from review if the PFOA or PFOS levels are at or above 40 ppt. In making that determination, the EPA has decided that the lower hazard quotient considers the additive toxicity of PFOA and PFOS, and the fact that other PFAS chemicals may not yet have consensus toxicity values. On the other hand, this approach would remove from further review sites that are below 40 ppt—a higher level than some states (such as New York and New Jersey) and agencies have set for remediation goals. As a practical matter, this guidance also may represent a short- or intermediate-term safe haven for jurisdictions that have not yet taken a position.
The EPA also recommends using its existing lifetime health advisory of 70 ppt as the preliminary remediation goal for groundwater that is a current or potential source of drinking water where no state or tribal maximum contaminant level (MCL) or other applicable or relevant and appropriate requirements exist. Where groundwater is being used for drinking water, the “EPA expects that responsible parties will address levels of PFOA and/or PFOS over 70 ppt.” But there are no further details on what “address” means in practice—suggesting that this guidance is not a cleanup standard equivalent to an MCL. Implementation of cost-effective and technically feasible PFAS remediation systems can be a challenging task.
This EPA guidance is preliminary and could be revised as the agency develops new information on these substances. If you do have potential exposure to PFOA or PFOS liability, these federal guidelines may impact your current and future liability posture. To read the EPA’s draft interim recommendations in their entirety, click here.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Davidson, Mr. McGrath and Mr. Moyer and may not reflect the opinions of Synergy Environmental, Inc., Manatt Phelps & Phillips LLP or either of those firms’ clients.
