CONNECTICUT: An Introduction to Environment
The Forever Chemicals: The Ever-Evolving Regulatory Climate of Per- and Polyfluoroalkyl Substances (PFAS)
By Kyle R. Johnson, Douglas A. Cohen, and Franca L. DeRosa, Brown Rudnick Partners in the Energy, Regulatory, & Environmental Group.
The family of chemicals known as per- and polyfluoroalkyl substances, commonly referred to as PFAS, have been cited in environmental circles as an “emerging contaminant” for well over a decade. PFAS are a group of over 4,000 (and possibly as many as 9,000) man-made chemicals originally discovered in the 1930s. PFAS compounds were attractive to manufacturers due to their ability to impart certain unique properties (stain repellent, surfactant qualities) to consumer products. The most commonly cited and studied PFAS compounds include PFOA, PFOS, PFBS, GenX and approximately twenty other PFAS compounds. Initially targeted by regulators based on their widespread use in aqueous film forming foams (AFFF) at airports and military bases, PFAS chemicals have historically been used in many industries and products, including metal plating and finishing, textiles, food packaging, household and industrial cleaners, surface coatings, plastics and cosmetics. PFAS are also found in fire suppression foams used at warehouses and other industrial spaces.
Because of the strong carbon-fluorine bond in these compounds, many PFAS compounds do not appreciably degrade under normal environmental conditions. As such, many PFAS compounds have accumulated in the environment since the earliest known production of PFAS compounds in the 1940s. Human exposure to PFAS compounds occurs through a few different pathways – ingestion of contaminated drinking water and seafood are the most commonly cited. 3M discontinued the use of PFOS (the key ingredient in its product Scotchgard) in the early 2000s and the United States took steps to phase out the use of the most common PFAS compounds, including PFOA, in the mid-2000s. Accordingly, human exposure to those two compounds have been on the decline in the United States. However, manufacturers replaced those compounds with new PFAS compounds, some of which may be equally hazardous, but which have not been subject to the same level of scrutiny as the other PFAS compounds mentioned here.
Preliminary regulation of PFAS compounds began in a few states as early as the mid-2000s, with the early focus on the two-most studied PFAS compounds – PFOA and PFOS. North Carolina and New York implemented an Interim Maximum Allowable Concentration of 2000 parts per trillion (ppt) for PFOA in 2006. Minnesota followed in 2007 with PFOS health-based values for rivers and lakes at six (6) and twelve (12) ppt respectively. In 2016, the United States Environmental Protection Agency (EPA) established a lifetime health-based advisory of 70 ppt for PFOA and PFOS. Health advisories are non-enforceable and non-regulatory so are simply a means by which the EPA provides states with the information they need to track and treat these compounds. Many states followed the EPA’s lead and adopted the health advisory limit of 70 ppt as a screening level (see e.g. Alaska, Colorado, Connecticut, Delaware, Iowa, Maine, Montana, New Mexico, Ohio, Oregon and Pennsylvania).
More than a decade after the initial PFAS regulations, a slight majority of states have implemented some sort of standard for approximately 22 different PFAS compounds, with most standards focused on drinking water. Of the states that have enacted drinking water standards, most standards fall below 20 ppt. To give the reader a sense of the scale of ppt, an Olympic-sized swimming pool is an oft-used analogy. One drop of water in that pool is the equivalent to one part per trillion. Most environmental standards are in the parts per million or parts per billion range. Given the ubiquity of PFAS compounds in everyday products and the incredibly low standards being set, one can understand how PFAS regulation has the potential to have enormous impacts across the country. Further, many analytical labs are not even equipped to detect levels at this concentration, raising potential logistical issues with sampling and analysis.
Over the last two to three years, all five New England states have acted to regulate the use or cleanup of PFAS, with both Massachusetts and Vermont establishing Maximum Contaminant Levels (MCL) of 20 ppt for various PFAS compounds in drinking water and groundwater. As discussed below, these states are ahead of the curve as the federal government has yet to establish an MCL for PFAS.
Although Connecticut has taken initial steps to regulate PFAS, its standards are still evolving. In 2016, Connecticut adopted a drinking water action level based on the EPA’s health-based advisory limit of 70 ppt for PFOA and PFOS, as well as three additional PFAS compounds. Action levels, however, are not enforceable standards and are simply a tool used by the Connecticut Department of Public Health to identify private wells that may need an alternative drinking water source. In 2019, the state’s Interagency PFAS Task Force issued its PFAS Action Plan which set forth the State’s strategy, including the establishment of cleanup standards for PFAS in soil and groundwater. However, Connecticut has not yet moved to implement enforceable maximum contaminant levels or cleanup standards for PFAS contaminants and the timing on such an action is unclear. In June 2021, the Connecticut legislature passed a bill that bans the use of Class B firefighting foams that contain PFAS except in situations where the fire at issue is petroleum-based. A number of other PFAS-related bills have been raised in the Connecticut legislature, including restrictions on PFAS compounds in food packaging, but have yet to be enacted as law.
The EPA was initially slow to respond to PFAS, but it now appears to be moving very quickly and definitively. In February 2021, the EPA reissued final regulatory determinations to regulate PFOS and PFOA. This determination triggered a 24-month window for EPA to propose national primary drinking water regulations – enforceable MCLs. EPA has reportedly indicated to stakeholders that it expects to propose health-based drinking water goals (maximum contaminant level goals or MCGLs) to its Science Advisory Board (SAB) sometime this year. SAB review is a prerequisite to setting MCLs. Once established, the PFAS MCLs will give the EPA something it has not had to date – an enforceable means to regulate PFAS, albeit for only two compounds. One would expect a similar track for other PFAS compounds that have been the focus of state agencies across the country, in particular PFNA, PFBA, PFBS, PFHxS, PFHxA, PFHpA and GenX.
In addition to drinking water, the EPA is using available regulatory mechanisms to track current PFAS usage by industries. Effective as of January 2021, Section 7321 of the National Defense Authorization Act for Fiscal Year 2020 immediately added approximately 172 PFAS compounds to the list of chemicals covered by the Toxic Release Inventory (TRI). This requires certain industries using certain quantities of PFAS compounds to report usage on a yearly basis via EPA’s Form R. Part of the Emergency Planning and Community Right to Know Act (EPCRA), the TRI gives regulators a clear sense of the industries and volumes of chemicals being managed by individual companies. Presumably, the EPA will rely on Form R reporting to help identify potential sources associated with PFAS contamination and to understand the extent of the use and manufacture of PFAS. In June 2021, EPA proposed a rule pursuant to the Toxic Substances Control Act (TSCA) that would require reporting and recordkeeping for PFAS manufactured in any year since January 1, 2011. The proposed rule would apply to a broader spectrum of PFAS compounds (over 1,300) and unlike TRI reporting, would not be subject to any volume thresholds. In our experience, information collected under EPCRA and TSCA will naturally lead to increased EPA attention to the issue and, eventually, EPA guidance, regulation and enforcement.
Finally, in April 2021, EPA Administrator Michael Regan announced the creation of the EPA Council on PFAS – “a council of senior EPA career officials from across the agency to strategize the best way to use the EPA’s authorities, expertise and partnerships to mitigate and reduce PFAS pollution and protect public health and the environment.” Among other things, the PFAS Council will develop “PFAS 2021-2025 – Safeguarding America’s Waters, Air and Land,” a strategy based on and expanding upon the 2019 EPA PFAS Action Plan. Expected later this year, the strategy will likely provide a good roadmap for federal and state agency action over the next several years.
One of the most highly anticipated federal actions in this area relates to whether any PFAS compounds will be designated as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Doing so could have potentially massive implications for responsible parties across the country and would give the EPA the ability to take immediate action to address groundwater and drinking water contamination and to recoup those costs from private parties via CERCLA’s cost recovery mechanism. In accordance with 2019 guidance for addressing PFOA and PFOS impacted groundwater, the EPA is already requiring parties at some CERCLA sites to sample for PFAS, even where there has been no evidence of PFAS sources or potential receptors at the site. We anticipate that trend will continue and most CERCLA sites will be required to sample for PFAS, either during the remedial investigation phase of the project, or at the 5-year review.
Outside of PFAS manufacturers and other industrial companies with clear PFAS uses, the implications for property owners that own properties with PFAS contamination or companies that used PFAS substances are uncertain. Few states have yet to enact binding PFAS cleanup standards. Cleanup of PFAS has proven notoriously difficult and expensive with remedial measures focused on groundwater pump and treat systems, systems that haven’t been as widely used in many years due to the availability of in-situ and other treatments that can deal with most common contaminants. Not so with PFAS. Moreover, most groundwater standards are so low, 20 ppt or lower in many cases, that pump and treat could potentially take decades to reach prescribed levels and may never reach those levels with existing technologies.
Although not yet directly addressed by ASTM’s Phase I standard, purchasers of property and manufacturing companies should be careful to investigate the potential for PFAS contamination in every transaction. This doesn’t mean that sampling for PFAS necessarily needs to be undertaken, but that a skilled environmental consultant knowledgeable on PFAS and aware of potential historical uses should be employed as part of the environmental due diligence. Further, given that most environmental professionals believe that PFAS will be regulated in the future, it might be helpful when selling property or a company that might have some PFAS use, to undertake sampling to establish a “baseline” to insulate the seller from future PFAS contamination associated liability or, if PFAS is found, to allocate liability as part of the transaction.
PFAS will reportedly be a “non-scope” consideration in the upcoming revision to ASTM E1527 but that may change should EPA designate one or more PFAS compounds as a hazardous substance. One would also expect PFAS to be included as a contaminant of concern in environmental investigations at any industrial property over the next few decades as the science and understanding of human health effects of PFAS continues to evolve. Similarly, sites with ongoing groundwater monitoring requirements or five-year reviews, e.g. Superfund sites or Resource Conservation and Recovery Act (RCRA) Correction Action sites, may have to sample for PFAS moving forward, potentially opening up whole new areas of costly and time-consuming investigations. Finally, large natural resource damage claims may arise given the potential impacts to marine life.
It is plainly safe to say that PFAS has “emerged” and will be a primary driver of many investigations and remediations, and potentially litigation, across the country over the next several decades, especially as the understanding of these compounds and their potential health impacts continues to grow. We expect New England to remain on the cutting edge of the issue as the science evolves. Even if your state does not have an enforceable standard right now, it most likely will in the next three to five years, along with an enforceable federal standard. As such, it is critical to evaluate the potential PFAS issues or impacts in any acquisition of commercial or industrial property or in any corporate transactions.