Polyfluoroalkyl substances (PFAS) are an emerging contaminant of concern classified as a carcinogen by the EPA. PFAS and their daughter compounds, specifically perfluorooctanoic acid (PFOA), are beginning to be regulated at the state level.
Recent Governmental Actions
In 2016, the New Hampshire Department of Environmental Services (NHDES) established Ambient Groundwater Quality Standards (AGQS) of 70 nanograms per liter (ng/L) or parts per trillion (ppt) for PFOA, perfluorooctane sulfonate (PFOS), or for both where these chemicals are present together. As recently as February 2019, the EPA has released an action plan to address PFAS and protect public health. The 72-page action plan addresses the hazards and effects of PFAS on human and economic health and identifies short and long-term action items to address the issue:
- Develop new analytical methods and tools for understanding and managing PFAS risk
- Promote Significant New Use Rules (SNURs) that require EPA notification before chemicals are used in new ways that may create human health and ecological concerns
- Use appropriate enforcement actions to help manage PFAS risk
What are PFAS?
PFAS, sometimes referred as PFCs, are resistant to heat, oil, grease, stains, and water. They are used as surface-active agents to alter the surface tension of a mixture, rendering it water resistant. PFAS have been widely used in an unregulated manner since the 1940’s in industrial applications and consumer products. PFAS have been used in the United States in the following goods:
- Paper packaging
- Waterproofing or stain-resistant coating additives
- Fire Retardants in aviation fluid
- Car washes
PFAS have been introduced into the environment during industrial processes. Due to the nature of these contaminants, they are resistant to hydrolysis, photolysis, volatilization, and biodegradation. This allows for PFAS to persist in the environment, bio accumulate within an organism, and be highly mobile. As a result, PFAS have been transported into surface and groundwater and have been known to migrate long distances.
PFAS in Drinking Water
From 2013 to 2015 the EPA monitored 5,000 public water supplies for the presence of PFOA, a derivative of PFAS and contaminant of concern. According to a Drinking Water Health Advisory for PFOA, provided by the EPA, two percent (100) public water supplies monitored contained PFOA above the minimum reporting level for the survey (0.02 ppb). PFAS impacted groundwater has been identified in several New Hampshire communities and as a result, the New Hampshire Department of Environmental Services (NHDES) has required that waste sites complete an initial screening for the presence of PFAS.
PFAS and CERCLA (CERCLIS)
According to the EPA, PFAS are not currently listed as CERCLA hazardous substances. The EPA does indicate that in some circumstances, PFAS could be responded to as CERCLA pollutants or contaminants. CERCLA does not require chemical-specific cleanup standards, but does require that response actions protect public health and the environment. The EPA has yet to apply enforceable Maximum Contaminant Levels for PFAS, however, health advisories, generally a framework for future enforcement rules, have been released by the EPA. Thus, it is not likely at this time for commercial properties to be considered a CERCLA liability.
It should be noted that a heavy industrial or former industrial property specifically known for the use of, or found to have a primary use for PFAS (i.e. a Teflon coating facility) may be considered a significant source of PFAS contamination for a public drinking supply. If a facility is found to have impacted a municipal water supply to the point that it is considered a threat to public health, it may be considered to be eligible to be enforced under CERCLIS.
What it Means for Your Commercial Property
Regulations and standards have not been widely set for PFAS, and many properties with suspected or potential impacts are not required to investigate or address these chemicals at this time. However, as regulators obtain more data on the health impacts of PFAS, more states will assign environmental standards like those assigned by NHDES. Since these compounds were rarely investigated in the past, there is potential for PFAS contamination at a property, even if it has been investigated in the past.
On-site drinking water wells are a particular concern for a site with PFAS contamination because the thresholds are much lower than other contaminants. Even very low concentrations in the drinking water supply may result in immediate enforceable actions.
If you are concerned about PFAS or other contaminants on your property, EBI Consulting’s team of experts can assess the site and provide a comprehensive analysis, helping you to determine next steps, if necessary, and guiding you through this emerging regulatory landscape.