General Publications May 22, 2019

“Federal Agencies Dig in for Prolonged PFAS Fight,” Law360, May 22, 2019.

Extracted from Law360 

The U.S. Department of Defense has picked a fight with the U.S. Environmental Protection Agency and Congress over allowable levels per- and polyfluoroalkyl substances, or PFAS, in groundwater, in a remarkably public battle that portends a prolonged fight over how to regulate this emerging family of contaminants.

PFAS are a group of synthetic organic compounds used in myriad ways throughout the U.S., including paper manufacturing, fast food packaging and firefighting foam. Because of their chemical composition, PFAS have an outsize potential to contaminate water systems. Therefore, regulators at all levels have turned their attention to how to address PFAS contamination, namely for the compounds perfluorooctanoic acid, or PFOA, and perfluorooctane sulfonate, or PFOS, two of the most common contaminants in the PFAS family.

The EPA has spent years studying the issue, but has yet to set a Safe Drinking Water Act maximum contaminant level, or MCL, for PFAS, which acts as the legal threshold for remediation of drinking water systems. An MCL would set a nationwide standard for PFAS remediation, and could discourage states from setting their own regulations.

The DOD has a lot to lose, depending on how, or even whether, the EPA sets an MCL. The DOD used firefighting foam widely, and more than 400 DOD facilities[1] have been identified as possibly contaminated with PFAS. As a result, the DOD could face billions of dollars in remediation costs, depending on how remediation levels are set.

The EPA and DOD are miles apart on PFAS cleanup levels. The EPA has set a PFAS “health advisory” level of 70 parts per trillion, or ppt, for drinking water systems,[2] which may influence any future setting of an MCL. For its part, the DOD has proposed setting the PFAS acceptable risk level at 380 ppt, or more than five times the EPA level.[3] (To put these concentrations into perspective, one part per billion is the equivalent of a single drop in an Olympic-size pool.[4] Therefore, one part per trillion is a single drop in 1,000 Olympic size pools.)

Both the EPA and the DOD recommended risk levels are based on limited scientific research. Although PFAS were manufactured for decades, it is only in recent years that concerns have been raised about their possible health effects. Therefore, there have been limited studies on how PFAS effects human health, particularly studies that look at long-term effects. The EPA has reported that PFOS, one contaminant in the PFAS family, was detected in blood in up to 99% of the U.S. general population between 1999 and 2012.[5] Yet when the EPA set its health advisory level, it relied largely on studies done on animals rather than humans.[6]

The DOD has provided even less scientific evidence to back its risk advisory level, which it says was set using “the long-established CERCLA risk-based cleanup approach based on the EPA’s implementing regulations,” which it describes as “based on sound science.”[7] Just detecting PFAS can be difficult, which makes studying it even harder. For example, only a single public agency laboratory in California is certified to test for PFAS.[8]

Neither EPA nor DOD levels for PFAS have significant scientific evidence to back them, and it remains to be seen how any MCL may be set. More studies will be needed to fully ascertain the health effects of PFAS going forward, but the disagreement between the EPA and the DOD over what the appropriate risk level should be continues. This has set the stage for an unusually public battle, that has some in Congress lining up behind the EPA.

Sen. Jeanne Shaheen, D-N.H., asked Acting Defense Secretary Patrick Shanahan pointed questions during a March 14, 2019, Senate Armed Services Committee hearing about whether the DOD was seeking to water down the EPA’s proposed PFAS cleanup level. Shanahan responded to Shaheen last month with a bluntly worded letter,[9] first published by Inside EPA. “The short answer is no,” he wrote. “The Department takes its cleanup responsibility seriously and undertakes these actions in an open and transparent manner. Our priority is to quickly address the presence of PFOS and PFOA in drinking water that resulted from DOD activities.”

Shanahan then stridently defended the DOD’s decision to set an acceptable risk level of 380 ppt for groundwater cleanup. “The Department is not seeking a different or weaker cleanup standard, but supports the use of the long-established CERCLA risk-based cleanup approach based on the EPA’s implementing regulations,” he said. “This approach is based on sound science and applies to everyone and every chemical, nationwide.” Shanahan also distinguished the EPA’s health advisory as “not a cleanup level.”

This public spat is in stark contrast to how the EPA and the DOD addressed perchlorate, another emerging contaminant. Perchlorate is an industrial chemical found in rocket propellant, explosives and fireworks, among other things. The DOD faced significant liability if it was forced to remediate sites contaminated with perchlorate. The EPA indicated it intended to set an MCL for perchlorate.

In October 2008, under the Bush administration, the EPA announced it would not set an MCL for perchlorate.[10] In February 2011, under the Obama administration, the EPA announced that it intended to regulate perchlorate under the Safe Drinking Water Act, the precursor to setting an MCL.[11] It was clear then that the EPA and the DOD were likely on opposite sides of the issue, yet any interagency dispute stayed behind closed doors.

To this day, the EPA has not set an MCL for perchlorate. In that instance, states stepped into the regulatory void. California[12] and Massachusetts[13] have both set MCLs for perchlorate.

The public nature of the fight over PFAS indicates how much the EPA and the DOD have dug in their heels this time around. Several states have already taken steps to regulate PFAS. New Jersey has set an MCL of 14 ppt for PFOA and 13 ppt for PFOS.[14] Massachusetts has set a PFAS guideline of 70 ppt.[15] And California has set notification guidelines, the precursor to an MCL, of 14 ppt for PFOA, 13 ppt for PFOS and 70 ppt cumulatively.[16] These various state guidelines threaten to create a patchwork of uneven state regulations.

Businesses looking to the federal government to set a nationwide standard on how to address PFAS, and allay ongoing fears about remediation costs, will likely be waiting a lot longer, as this fight shows no signs of abating.


Footnotes: 

[1] https://www.gao.gov/products/GAO-18-700T.

[2] https://www.govinfo.gov/content/pkg/FR-2016-05-25/pdf/2016-12361.pdf.

[3] https://www.denix.osd.mil/derp/home/documents/alternatives-to-aqueous-film-forming-foam-report-to-congress/.

[4] https://www.tceq.texas.gov/assets/public/remediation/superfund/jonesroad/ppb_chart.pdf.

[5] https://www.epa.gov/sites/production/files/2016-05/documents/pfos_health_advisory_final_508.pdf.

[6] https://www.epa.gov/sites/production/files/2016-05/documents/pfoa_hesd_final_508.pdf; https://www.epa.gov/sites/production/files/2016-05/documents/pfos_health_advisory_final_508.pdf.

[7] https://www.shaheen.senate.gov/imo/media/doc/4-10-19_DOD%20Response%20to%20CERCLA%20Letter.pdf.

[8] https://www.ocwd.com/media/7597/ocwd-lab-certified-for-pfoa-and-pfos-detection.pdf.

[9] https://www.shaheen.senate.gov/imo/media/doc/4-10-19_DOD%20Response%20to%20CERCLA%20Letter.pdf.

[10] https://www.govinfo.gov/content/pkg/FR-2008-10-10/html/E8-24042.htm.

[11] https://www.govinfo.gov/content/pkg/FR-2011-02-11/html/2011-2603.htm.

[12] https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/documents/perchlorate/perchlorate_mcl_review_summary.pdf.

[13] https://www.mass.gov/files/documents/2016/08/vb/perchlorate-310cmr22-07282006.pdf.

[14] https://www.nj.gov/dep/srp/emerging-contaminants/.

[15] https://www.mass.gov/files/documents/2018/06/11/orsg-pfas-20180608.pdf.

[16] https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/PFOA_PFOS.html.

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