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PFAS, Part 2: Congress, States Try to Fill Gap Created by EPA Inaction
May 07, 2019

By Elizabeth A. Rosso

In my previous post regarding per- and polyfluoroalkyl substances (PFAS), I looked at the Environmental Protection Agency’s (EPA) PFAS Action Plan, and its lack of any meaningful action to address increasing concerns over the environmental and human health risks posed by per- and polyfluoroalkyl substances.  Since then, there has been a flurry of activity at both the federal and state levels to address, or not, this growing public health issue.
 
Additional Federal Actions on PFAS
 
Since my previous post on this topic, both Congress and the President have taken actions related to PFAS.  On February 28, 2019, the U.S. Senate introduced the PFAS Action Act of 2019 (S. 638), which is identical to the House Bill introduced in January (H.R. 535).  Both bills would require the Administrator of the Environmental Protection Agency to designate per- and polyfluoroalkyl substances as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) no later than one year after enactment of the act.
 
On March 18, 2019, the President submitted his Fiscal Year 2020 budget proposal.  Part of that proposal included cuts to Department of Defense environmental restoration funds–the funds used, in part, to clean up contaminants such as PFAS.  The President’s proposed cuts would affect both current military installations and Formerly Used Defense Sites.[1]
 
On March 28, 2019, the PFAS Detection Act of 2019 was introduced in both houses of Congress (H.R. 1976 and S. 950).  If enacted, the PFAS Detection Act of 2019 would require the Director of the U.S. Geological Survey to establish a performance standard for the detection of perfluorinated compounds, and to conduct nationwide sampling “to determine the concentration of perfluorinated compounds in estuaries, lakes, streams, springs, wells, wetlands, rivers, aquifers, and soil.”  Similar legislation has been introduced in previous Congresses, however, and it is unclear whether the current Congress feels enough urgency over PFAS to muster the votes to pass the legislation this time around.
 
On April 3, 2019, the Veterans Exposed to Toxic PFAS Act (S. 1023) was introduced in the U.S. Senate.  That act would require the Department of Defense “to furnish hospital care and medical services to veterans, members of the reserve components of the Armed Forces, and dependents who were stationed at military installations at which they were exposed to perfluorooctanoic acid or other per- and polyfluoroalkyl substances.”  The act also would establish “a presumption of service connection for those veterans and members of the reserve components.”  Identical legislation was introduced in both the House and the Senate during the previous Congress.
 
States Step In
 
While Congress and the President pursue conflicting goals regarding PFAS, and EPA continues to pay only lip service to taking action,[2] more states are taking matters into their own hands.
 
Thus far, only New Jersey has enacted a Maximum Contaminant Level (“MCL”) for any PFAS in drinking water (for perflourononanoic acid (PFNA), at .013 µg/L).  Several other states have promulgated various types of rules–cleanup levels, screening levels, or health-based values–for PFAS in groundwater and/or surface water (primarily perflurooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), though a few states have also included PFNA in their rules; Texas has established a Tier 1 Protective Concentration Level for 12 different PFAS in groundwater; and Vermont has established both drinking water/groundwater Health Advisory levels and groundwater Preventive Action Levels for five different PFAS).  Alabama, Arizona, Colorado, and West Virginia use the EPA’s Lifetime Health Advisory.  As of this writing, 10 other states have proposed rules for PFAS or have issued final guidance, though not binding regulations, on PFAS.[3]
 
In addition to having an MCL for PFAS in drinking water, New Jersey also has pursued various remedies against several PFAS manufacturers.  On March 25, 2019, the New Jersey Department of Environmental Protection issued orders to five different chemical companies to account for their use and discharge of PFAS, and to clean up any PFAS contamination that they caused.[4]  Then, on March 27, 2019, the New Jersey Attorney General filed a lawsuit against three of those companies for various pollution issues, including contamination of ground water and surface water.[5]
 
New Mexico also has opted to use litigation as one way to address PFAS contamination.  On March 5, 2019, it sued the U.S. Air Force over groundwater contamination at both Cannon Air Force Base in Clovis, NM, and Holloman Air Force Base near Alamogordo, NM.[6]
 
In addition, testing earlier this year showed that PFAS are having an impact in the Pacific Northwest as well.  The Portland Fire and Rescue Bureau training facility and the Portland Air National Guard Base had high levels of PFAS detected on-site.  In 2017, testing revealed PFAS contamination at the Portland International Airport’s fire training pits.  PFAS also have been found at Kingsley Field Air National Guard Base in Klamath Falls, Oregon, and at Naval Air Station Whidbey Island in Oak Harbor, Washington.[7]
 
What’s Next?
 
It’s clear that the federal government is feeling public pressure to do something about PFAS contamination.  It’s also clear that regulators, and maybe to a lesser extent lawmakers, at the national level do not really see PFAS contamination as a widespread, ongoing concern; rather, they view it as a localized historical issue that can be addressed through one-time, site-specific cleanups.
 
And despite what appears to be more significant action at the state level, only New Jersey possesses a drinking water MCL, and that MCL only governs one particular chemical out of the hundreds in the PFAS family.  Moreover, state-level enforcement actions also appear to be directed solely at historic contamination.  It seems that the states, like the federal government, don’t have the political will to either regulate or properly fund the scientific analyses at the ground level with regard to confirming the extent of PFAS contamination and how best to address it.
 
Given the ubiquity of PFAS in everything from firefighting foam to nonstick cookware to carpet, the inaction at every level is hardly surprising.  Establishing an MCL for PFAS in drinking water, for example, only addresses one very small part of a potentially insidious problem.  Countless other exposure pathways would still exist even if the nation’s drinking water were pristine.  Even if those other exposure pathways were eliminated, we would still need to deal with contamination occurring as a result of decades of PFAS releases to the environment.  And that task will only become more difficult the longer lawmakers and regulators delay beginning it.
 
Elizabeth Rosso is an attorney at Jordan Ramis PC who focuses her practice on environmental law. Contact her at elizabeth.rosso@jordanramis.com or (503) 598-7070.
 
Thank you for your interest in this blog. The information contained in this blog is for the general interest of our readers and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our environmental practice group.

 

[1] Columbus, Courtney.  “White House pushes cuts for cleanups despite PFAS concerns,” E&E News, March 29, 2019.
[2] At the Environmental Council of States meeting, EPA again promised to “issue a proposal” to list PFAS as hazardous substances under CERCLA – in other words, EPA is still planning to plan.  “EPA to List Nonstick Toxics as Hazardous Substances This Year,” Bloomberg Environment and Energy Report, April 9, 2019.
[3] ITRC PFAS Regulations, Guidance and Advisories, Section 4 Tables, available at http://pfas-1.itrcweb.org (last visited April 23, 2019).  A handful of states have also implemented varying standards with regard to soil screening levels for PFAS, id., though to date regulation of PFAS in soil is even less robust than regulation of PFAS in water.  Since much of the public outcry over lack of PFAS regulation centers on water contamination, and especially drinking water contamination, that is where this post focuses also, even though drinking water may become contaminated by PFAS leaching out of soil.
[4] “N.J. puts companies ‘on notice,’ orders pricey PFAS cleanup,” E&E News, March 25, 2019.
[5] “N.J. sues 3 firms over PFAS pollution,” E&E News, March 28, 2019.
[6] “N.M. sues Air Force over groundwater contamination,” E&E News, March 6, 2019.  The military has been a target of EPA enforcement action as well, primarily at or in the vicinity of now-closed installations.  PFAS are a component in the firefighting foam used by the military, and can contaminate groundwater and/or surface water when runoff containing that foam reaches those sources.  State enforcement actions and lawsuits such as those being pursued in New Jersey also are aimed at cleaning up historic contamination from the manufacture and use of those chemicals.
[7] Schick, Tony.  “Firefighting Foam Contaminated Northeast Portland Groundwater,” Oregon Public Broadcasting, February 27, 2019.
 



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