PFAS Contamination: Evolving State and Federal Regulatory Landscape, Science, Litigation, and Due Diligence in Transactions Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1. THURSDAY, OCTOBER 31, 2019 Presenting a live 90-minute webinar with interactive Q&A Russell Abell, P.G., LSP, Vice President, Sanborn Head & Associates, Concord, N.H. Jeff B. Kray, Partner, Marten Law, Seattle Matthew D. Thurlow, Partner, BakerHostetler, Washington, D.C. Stephen Zemba, Ph.D., P.E., Project Director, Sanborn Head & Associates, Burlington, Vt.
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.
THURSDAY, OCTOBER 31, 2019
Presenting a live 90-minute webinar with interactive Q&A
Russell Abell, P.G., LSP, Vice President, Sanborn Head & Associates, Concord, N.H.
Jeff B. Kray, Partner, Marten Law, Seattle
Matthew D. Thurlow, Partner, BakerHostetler, Washington, D.C.
Stephen Zemba, Ph.D., P.E., Project Director, Sanborn Head & Associates, Burlington, Vt.
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PFAS Occurrence in Public Water Systems
StudyDetects > 10 and
< 70 ng/LPFOA + PFOS
Detects > 40 ng/L (PFOS) or > 20 ng/L (PFOA)
Detects > 70 ng/L PFOA + PFOS
Total Number of
Water Systems Sampled
UCMR3 N/A 4.3% (212) 1.2% (59) 4,920
Michigan 3.6% (62) N/A 0.1% (2) 1,741
New Jersey
44% (17) 26% (10) 2.5% (1) 39
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PFAS Remediation/Treatment Options• Current ex-situ treatment
• GAC• Ionic exchange with resins• Reverse osmosis• Nano-filtration
• Potential for in-situ methods• PRBs using sorptive media• In-situ stabilization
• Experimental approaches• In-situ oxidation –challenges for
PFOS• Coagulation/ Electro-chem
coagulation
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Overview of Litigation in the U.S.▪ EPA’s announcement of health advisory levels for PFOA
and PFOS in 2016, increased water sampling, and public, political, and media attention have resulted in a spike in litigation against the manufacturers of PFAS and some secondary commercial users of PFAS
▪ Major class action and attorney general lawsuits have been filed involving PFAS manufacturers in Ohio/West Virginia, New Jersey, New Mexico New York, North Carolina, Vermont, New Hampshire, and Minnesota
▪ As of October 2019, there is also active and newly-filed PFAS litigation in Alabama, Arizona, Colorado, Delaware, Florida, Maine, Massachusetts, Michigan, Pennsylvania, South Carolina, and Washington
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Litigation Against PFAS Manufacturers
▪ Litigation involving PFAS manufacturing locations in Alabama, Minnesota, New Jersey, West Virginia/Ohio, and North Carolina
▪ Cases include state attorney general actions, class action claims, and personal injury claims
▪ Major class action settlements in Minnesota ($850 million in 2018) (Minnesota v. 3M Company) and West Virginia/Ohio ($670 million in 2017) (Carey/Leach v. E.I. DuPont)
▪ New Jersey, New Hampshire, and Vermont recently brought attorney general suits against PFAS and foam manufacturers
▪ October 2018: National Class Action filed against eight manufacturers in S.D. Ohio relating to PFAS exposure (Hardwick v. 3M, et. al, No. 2-18-cv-1185 (S.D. Ohio Oct. 4, 2018)
▪ November 2018: Arguments regarding potential consolidation of PFAS cases in multi-district litigation possibly in SDNY or S.D. Ohio
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Firefighting Foam Litigation
▪ Numerous municipal and class action cases have been brought against firefighting foam manufacturers across the United States
▪ June 2018: New York State Attorney General files suit against foam manufacturers seeking $38 million (New York v. 3M Company, et. al)
▪ AFFF (aqueous film forming foam) contained PFOS, PFOA, and other PFAS chemicals
▪ Foam sprayed at training sites can persist at sites and enter groundwater and surface water
▪ Numerous military bases involved in litigation▪ Cases consolidated in MDL in District of South Carolina
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Municipal Litigation▪ Based on EPA’s Unregulated Contaminant Monitoring Rule (UCMR3)
results, an estimated 6 million municipal water users, supplied by 66 large U.S. water providers, detected PFAS in drinking water above EPA’s 70 ppt health advisory level
▪ An estimated 16 million additional waters users were drinking water with some level of PFAS
▪ Smaller municipalities and private well owners also may have drinking water with some level of PFAS (these drinking water supplies were not included in the UCMR3 sampling, but PFAS has been detected in private water supplies in Mich., NH, NY, and VT)
▪ Some municipalities have been brought into litigation as the result of discharges from waste water treatment plants, firefighting facilities, and landfills
▪ Some water providers have already brought suit against PFAS and foam manufacturers; more municipal litigation seems likely
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Litigation Against Secondary Manufacturers, Landfill Owners, and Others
▪ As many as 90 cases were filed against a shoe manufacturer stemming from alleged PFAS releases from a former tannery and landfills in Michigan
▪ Other defendants in the Michigan litigation include a primary PFAS manufacturer and private landfill owner/operator
▪ CERCLA 106 order from EPA, RCRA lawsuit filed by Michigan Department of Environmental Quality (MDEQ), Class Action litigation (Zimmerman, et al. v. 3M Company, Wolverine Worldwide, Inc., Waste Management, Inc., et al.) (W.D. Mich.)
▪ Litigation against carpet manufacturers in Georgia/Alabama
▪ Litigation against former landfill owner in Parchment, Michigan
▪ Litigation involving dairies and contaminated milk in New Mexico and Maine (no FDA standards for PFAS in food and beverages)
▪ Litigation in Vermont involving another manufacturer recently settled for $40 million in injunctive relief (connecting residents to public water)
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PFAS Claims in Litigation▪ State common law claims: nuisance, negligence,
trespass; unjust enrichment; fraud
▪ Environmental claims: natural resource damages
▪ Product liability claims: defective design; failure to warn
▪ Personal injury claims: battery; medical monitoring; emotional distress
▪ RCRA claims (landfill disposal cases)
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Diligence Considerations
▪ Persistence: PFAS are durable in the environment and may be discovered decades after their release or disposal
▪ Pervasiveness: PFAS are mobile and can spread across the environment; there are several potential exposure routes (including airborne deposition, groundwater, and surface water)
▪ Few Enforceable Standards: Most states still have not developed enforceable cleanup standards for any of the PFAS chemicals
▪ Regulation May be Uneven: State standards are likely to be different with some states adopting much stricter PFAS sampling and cleanup standards (exs. Vermont, N.H., Mass., NY, and N.J.)
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Potential Diligence Red Flags for Buyers Acquiring Operations
▪ Manufactured PFAS chemicals or firefighting foam
▪ Processed, manufactured, or used (in large quantities) oil or water resistant or repellant fabrics, furniture, carpets, paper, plastics, metals, waxes, adhesives, or other products containing PFAS
▪ Disposed of large volumes of consumer or industrial products containing PFAS; disposed of construction and demolition waste; involved in bio-solid or paper composting operations
▪ Property located downgradient from potential PFAS sources; near potential air emissions source of PFAS
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P r e s e n t e r :
Jeff B. KrayAt t o r n e y
E - j k r a y @ m a r t e n l a w . c o m D - 2 0 6 . 2 9 2 . 2 6 0 8
Federa l and State Env ironmenta l Laws Address ing PFASs : Recent Developments
PFAS Contamination: Evolving Regulatory Landscape
October 31, 2019 | Strafford CLE Webinar
PFAS Regulatory Status - Over v iew
▪ PFASs are rapidly evolving from “emerging contaminants” to “regulated contaminants” at both the federal and state levels
▪ EPA has established non-binding drinking water health advisories for PFOA and PFOS – 70 parts per trillion
▪ There are no federal and few state numeric standards for cleaning up PFASs in soil and water
▪ At least one PFOA-contaminated site (Hoosick Falls, NY) is included on the Superfund National Priorities List
▪ EPA is working toward binding regulatory limits for PFAS in drinking and groundwater
▪ Several states have enacted regulations and increased testing for PFASs
▪ Congress may take the fore by legislating PFASs “hazardous”
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Federa l Regulat ion re : PFAS Now
▪ Regulation under Safe Drinking Water Act
(SDWA)
▪ Water supply monitoring required for PFOS/PFOA
▪ Health Advisory at 70 ppt
▪ Regulation under Toxic Substances Control Act
(TSCA) and other laws
▪ Manufacturing limits
▪ Not a “hazardous substance”
▪ Regulation under Superfund (CERCLA)
▪ Not a “hazardous substance”
▪ Regulation under Resource Conservation and
Recovery Act (RCRA)
▪ Not a “hazardous substance”?50
Safe Dr ink ing Water Act
▪ Monitoring required for PFOS/PFOA
▪ 1996 SDWA Amendments require EPA to issue new candidate contaminant list (CCL) every 5 years
▪ CCLs apply to public water systems
▪ PFOS and PFOA added to CCL in May 2012
▪ Drinking water health advisory
▪ Establish May 2016
▪ Set at 70 parts per trillion (ppt)
▪ Non-binding
Title XIV of The Public Health Service Act: Safety of Public Water Systems
(Safe Drinking Water Act)
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U n re g u l a t e d C o n t a m i n a n t M o n i t o r i n g R u l e ( U C M R )
• The SDWA Amendments of 1996 provide for:
▪ Monitoring no more than 30 contaminants every five years
▪ Monitoring large systems and a representative sample of small public water systems serving less than or equal to 10,000 people
▪ Storing analytical results in a National Contaminant Occurrence Database (NCOD)
• America’s Water Infrastructure Act of 2018
▪ Requires PWSs serving 3,300-10,000 people to monitor
• UCMR provides EPA and others with scientifically valid data on the occurrence of
these contaminants in drinking water. This permits assessment of the population
being exposed and the levels of exposure.
• This data set is one of the primary sources of occurrence and exposure information
the Agency uses to develop regulatory decisions for emerging contaminants.52
Genera l F low of SDWA Regulatory Processes
Public Review and Comment
Research Needs Assessment
Regulatory DeterminationDraft CCL
Final CCL
Draft UCMR
Final UCMR
UCMR Monitoring Results
UCMR
CCL
Preliminary Regulatory
Determinations
Final Regulatory Determinations
No further action required if decision is to not regulate
May develop health advisory
24months
Rule
Proposed Rule (NPDWR)
Final Rule (NPDWR)
18months
Review
Six-Year Review of Existing NPDWRs
Increased specificity and confidence in the type of supporting data used (e.g., health, occurrence, treatment) is needed at each stage 53
U n re g u l a t e d C o n t a m i n a n t M o n i t o r i n g R u l e ( U C M R )
UCMR 1 (2001-2005), required monitoring for 26 contaminants, including MTBE
UCMR 2 (2007-2011), required monitoring for 25 contaminants, including 5 flame
retardants and TNT
UCMR 3 (2012-2016), required monitoring for 30 contaminants, including 1,4-dioxane
and PFAS
UCMR 4 (2017-2021), required monitoring for 30 contaminants, including cyanotoxins
• PWSs monitor 2018-2020
UCMR 5 (2022-2026), what will make the list?!
• EPA anticipating proposal summer 2020 and final rule late 2021
• PWSs monitor 2023-202554
UCMR 5 Pr ior i t i zat ion Process
• All analytes on CCL 4• Other analytes within the scope of methods
for CCL 4 analytes• All analytes previously monitored under
UCMR 1, 2, 3, or 4
Propose up to30 contaminants
for comment
118 analytes on CCL 4 + 339 method related non‐CCL 4 analytes (includes analytes
monitored for under UCMRs 1,2,3 or 4)= 457 contaminants
▪ Listed PFOA and PFOS as chemicals requiring monitoring by public water systems under the Safe Drinking Water Act (SDWA)
• 2013-2015 – Drinking Water Testing
• May 2016 – EPA Issues PFOS and PFOA Drinking Water Health Advisories
• May/June 2018 – ASTDR Study and EPA Summit
• August 2018 – Congress Passes Military Spending Bill with PFAS Provisions
• February 2019 – Government Study of PFAS Health Impacts Near Military Bases
• February 2019 – EPA PFAS Management Plan
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T h e E PA M a n a g e m e n t P FA S P l a n – P l a n n i n g t o P l a n
What is in EPA’s PFAS PLAN:
• “Initiating Steps” to evaluate the
need for a Maximum Contaminant
Level (“MCL”)
• Beginning process to list PFAS as
CERCLA “hazardous substances”
• Commitment to finalize toxicity
assessments for GenX and PFBS
• Update databases and assessment
tools
• Evaluate potential need for a
Water Quality Standard by 2021
• Study and Working Groups
What is not in EPA’s PFAS PLAN:
• An MCL under the Safe Drinking
Water Act (“SDWA”) for PFOS or
PFOA
• A Water Quality Standard (“WQS”)
for PFOS or PFOA
• Listing PFASs as CERCLA 102
“hazardous substances”
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Recent Federa l Act ions
April 25, 2019 EPA Draft “Interim Recommendations” to Address Groundwater Contaminated with PFOA and PFOS
• To inform cleanup levels at sites being evaluated under CERCLA and RCRA
• Recommends preliminary remediation goal (PRG) of 70 parts per trillion (ppt) for groundwater that is current or potential source of drinking water
• Inconsistent descriptions of when the PRG would apply; in one place current or potential source of drinking water and another section it says it applies where groundwater is being used for drinking water
• Dropped removal action threshold of 400 ppt from initial draft
▪ Triggers removal action at Superfund sites when contamination poses immediate threat
• Under White House interagency review for 8 months (90 days typical)
• Interagency disputes; DOD compliance uncertain
• 373 public comments submitted to EPA before comment period closed June 10, 2019
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Congress iona l Act ions
2019 National Defense Authorization Act (NDAA)
• Required DOD to study PFAS contamination at military bases and develop cleanup plans
▪ February 2019 ATSDR study initiated
• Only PFAS related bill to become law to date
Dozens of introduced bills pending further action
• Setting MCLs
• CERCLA hazardous substance listings
• Enhanced testing and monitoring
• Firefighting foam restrictions
• Funding for additional health studies
• Assistance for veterans impacted by PFAS exposure at military installations
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Congress iona l Act ion
▪ 2020 National Defense Authorization Act (NDAA): Committees in both House and Senate are considering bills to designate all PFASs as “hazardous substances” under CERCLA (see H.R. 535)
▪ EPA opposes as “unworkable”
▪ Many water utilities also oppose
▪ House Subcommittee on Environment and Climate Change
▪ Passed 13 PFAS related bills as of October 2019
▪ Senate approved a motion against Defense Department using PFAS
firefighting foam
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Congress iona l Act ion
▪ 2020 National Defense Authorization Act (NDAA) includes $251 million toward PFAS:
▪ Nearly $200 million for “investigations and remediation on bases and in communities adjacent to bases”
▪ $43 million to dispose of and replace firefighting foam
▪ $10 million to help fund Centers for Disease Control and Prevention study on PFAS health impacts
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State Regulat ion
• So far, over 100 bills introduced across 17 states
• 16 different states have finalized 28 rulemakings (more coming!)
– Exposure limits for drinking water
– Groundwater and soil cleanup standards
– Hazardous waste disposal
– Prohibiting AFFF use and PFAS in products
– Children’s product liability
• Most active: NY, MI, NH, PA, WA
• Will legislatures act to set cleanup standards before executive?
▪ Beware of unintended consequences!
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Less Str ic t S tandards (CA , NY, WA)
▪ California
▪ PFOA and PFOS are listed on the Proposition 65
▪ Requirement for “clear and reasonable” warning
▪ Washington
▪ Annual reporting requirement for manufacturers under Children’s Safe Products
▪ Restrictions on the sale and use of firefighting foam containing PFOA or PFOS
▪ New York
▪ Restrictions on the sale and use of firefighting foam containing PFOA or PFOS
Image source: National Council for Nonprofits 67
Washington State Developments
▪ PFASs above the EPA health advisory limit have been found
▪ City of Issaquah▪ Joint Base Fort Lewis McChord▪ Naval Air Station (Whidbey Island)▪ Fairchild Air Force Base (Spokane)
▪ New laws passed
▪ ESSB 6143 (No PFAS in Firefighting Foam)▪ ESHB 2658 (No PFAS in Food Packaging)
▪ Board of Health accepted a petition for rulemaking for PFAS in drinking water
▪ Washington Department of Ecology has begun process to develop cleanup levels for PFOA and PFOS
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Washington State Developments
Chemical Action Plan (CAP) for PFASs
▪ Establish drinking water limits for PFAS. Prioritize testing for drinking water at higher risk for contamination.
▪ Develop soil and ground water cleanup levels for PFASs and develop best practices for managing cleanups.
▪ Implement Washington’s new law restricting use and sale of PFAS-containing foam.
▪ Investigate PFAS sources most likely to pose a risk to human health and the environment (industrial releases, textiles, and cosmetics).
▪ Support research regarding safe alternatives to PFAS, particularly in food packaging.
▪ PFAS CAP Timeline update:
▪ Early 2020: publish the Draft PFAS CAP.
▪ Mid-March-Mid May 2020: 60-day public comment period - with public meetings.
▪ Early Fall 2020: Advisory Committee meeting to review comments on Draft CAP.
▪ Fall 2020: Publish finalized PFAS CAP
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Current Regulatory L imits
Drinking Water (µg/L)
*Proposed April 1, 2019** As of July 2018***See details, next slide
Agency Description PFOS PFOA PFBS PFBA PFNA
EPA Health advisory 0.07 0.07
Canada Drinking water screening values 0.6 0.2 15 30 0.2
ME Maximum exposure guidelines 0.1
MI Drinking water surface water quality value 0.42
NM Listed “toxic pollutants” at a “risk-based level” matching federal EPA health advisory**
0.07 0.07
VT Statute requiring drinking water limits (pending Governor’s signature)***
0.02 0.02 0.02
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Current Regulatory L imits
Groundwater (µg/L)
Agency Description PFOS PFOA PFBS PFBA PFNA
CO Regulatory limits 0.07 0.07
IA Regulatory limits 0.7-1.0 0.7
IL Provisional groundwater remediation objectives, Class IProvisional groundwater remediation objectives, Class II
0.2
0.2
0.4
0.2
MI Regulatory limits 0.07 0.07
MN Health risk limit 0.3 0.3 7 7
NC Regulatory limits 2.0
NH Regulatory limits 0.07 0.07 0.02
NJ Regulatory limits 0.013
NM Listed “toxic pollutants” at a “risk-based level” matching federal EPA health advisory*
0.07 0.07
VT Regulatory limits (PFOS, PFOA, PFHxS, PFHpA, and PFHA total)
0.02 0.02 0.02
* As of July 201871
VERMONT – Str ic t PFAS L imits
▪ Pending Governor’s signature: Public water system required to monitor water supplies, not exceed a combined 20 ppt for five PFASs (PFOA, PFOS, PFHxS, PFNAm PFHpA)
▪ If exceeded: (1) public water system must reduce contaminants to levels below 20 ppt; (2) Issue a “Do Not Drink” notice
Secretary of Natural Resources must:
▪ Issue a final proposed rule for a maximum contaminant level (MCL) for five PFAS
▪ Solicit public comments for PFAS compounds as a class or sub-class
▪ Adopt surface water quality standards for PFAS compounds
▪ Publish a plan to complete a statewide investigation of potential sources of PFAS contamination
▪ Submit a report regarding the management of landfills of leachate containing contaminants of emerging concerns (CECs), recommend treatment of CECs in leachate from landfills
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MAINE – Benef ic ia l Use of So l id Wastes
▪ All biosolids/sludge program licensees and biosolids/sludge composting facilities are required to test their material for PFOA, PFOS, and PFBS
▪ Maine DEP Chapter 418, Appendix A (screening concentrations):
▪ If screening levels are exceeded, a “closer look” by the Department of Environmental Protection will occur
▪ Applicable to all licensed facilities that land apply, compost, or process sludge in ME
