According to a senior US EPA official, “Superfund is sexy again.” Newly discovered health risks attributed to so-called “emerging contaminants” are causing federal and state agencies to revisit long closed Superfund sites and evaluate the environmental and human health risks at myriad new locations. These ubiquitous environmental contaminants, including perfluoronated compounds and 1,4-dioxane, present a significant risk to human health at very low concentrations. So much so, that US EPA Administrator, Scott Pruitt, recently held a Leadership Summit to discuss these new emerging contaminants and develop a coordinated response across EPA regions.
The US EPA and several state environmental agencies are establishing very low guidelines or standards for these contaminants. They are also beginning to require responsible parties to test for these chemicals at existing (and in some cases closed) state and federal superfund sites, and, if present, to develop plans to address the attendant risks. Eventually, the government will restrict the discharge of these contaminants in waste water and the air, which will pose another significant layer of compliance headaches and expenses. While this may be good news for government regulators, environmental attorneys and consultants, this news is bad for landowners and developers.
One of these emerging contaminants is actually comprised of an entire class known as the per- and poly-fluoroalkyl (“PFAS”) compounds, such as perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”). Until their use was phased out in the United States over the last two decades, manufacturers used these compounds in non-stick cookware, water repellent fabrics, firefighting foams and a variety of other applications. PFAS are often found in elevated concentrations near military bases, airports, firefighting academies, metal plating plants, landfills and manufacturing facilities where they were used. In a perfect storm of problems for responsible parties who have to deal with these emerging contaminants, they are highly persistent in the environment, expensive to monitor and test, difficult to treat and pose potential health risks at very low concentrations. For example, the US EPA Lifetime Health Advisory for PFOA and PFOS is 70 parts per trillion (“PPT”).
Another emerging contaminant is 1,4-dioxane. 1,4-dioxane is often found along with other industrial solvents such as TCE, but it is also present in consumer products, such as shampoos and cleaning agents. Because of their widespread consumer use, these compounds are found just about everywhere. For example, 1,4-dioxane can be found in private septic systems and associated groundwater. The MassDEP groundwater clean up standard for 1,4-dioxane is 300 PPT in potential or existing water supply areas.
To date, the US EPA has not set a Maximum Contaminant Level for PFAS under the Safe Drinking Water Act. Thus, as far as the federal government is concerned, there is no enforceable standard. However, as a result of a number of exceedances of the Lifetime Health Advisory level found by public water suppliers when they performed required monitoring for PFAS under EPA’s Unregulated Contaminant Monitoring Rule, those water suppliers have taken action to limit public exposure. For example, the Towns of Westfield, MA, near Barnes Air Force Base, and Ayer, MA, have both stopped using public water supply wells where detections of PFAS exceeded the Lifetime Health Advisory. The Town of Westfield has recently filed a lawsuit against the manufacturers of AFFF firefighting foam to recover damages.
The law and regulations governing site assessments and remediation for these contaminants is still “emerging.” While some states, such as New Hampshire, have promulgated legally binding cleanup standards for certain PFAS, others, like Massachusetts, are still in the process of developing guidance and have not yet begun the official process of establishing a legally binding regulatory standard. In early June, MassDEP issued “Final Recommendations for Interim Toxicity and Drinking Water Values” for testing as part of the Unregulated Chemical Monitoring program. But this Interim Guidance does not establish clear enforceable standards. Until standards are promulgated, the question of whether or not to test for these contaminants as part of a site assessment falls to the good judgment of the professional environmental consultant. Thankfully, most environmental consultants are sufficiently knowledgeable about the potential presence of these contaminants to design an appropriate sampling and analytical program to protect their clients.
Because PFAS are not yet consistently regulated across the states and are not defined as a “hazardous substance” under the federal Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA or “Superfund”) administered by the US EPA, regulatory authority to compel assessment and remediation of PFAS varies from state to state and from site to site. According to Regional Administrator Dunn, the Agency is reading the language of individual Superfund consent decrees to determine whether the responsible parties agreed to reopeners for only “hazardous substances,” or also for other “pollutants or contaminants,” which would encompass PFAS. She emphasized that, at sites where the EPA concludes it does not have the legal authority to compel responsible parties to take further response actions, the relevant state may have authority to take such action. She indicated that there has been some discord between the federal and state governments over this issue.
PFAS can be in solid waste. The federal Resource Conservation and Recovery Act currently does not include PFAS within the definition of a hazardous waste. Currently, only Vermont and New York states reportedly regulate PFAS as “hazardous wastes” under their parallel state programs. Conceivably, this means that in all other 48 states, an industrial or other waste generator is not required to evaluate whether or not its waste streams contain PFAS, or make any special arrangements for storage, transportation or disposal of those wastes (such as using a RCRA permitted hazardous waste facility). This challenges solid and hazardous waste disposal companies with the question of whether they want to handle wastes which may have PFAS, and expose themselves to the potential future worker exposure or environmental release liability that may ensue.
To make matters even more difficult, most states have not adopted surface water quality criteria, discharge or other limits, on the emissions of PFAS to water bodies, or to the air. A few states, such as Vermont, have established policy limits on the concentrations of PFAS, which can be in landfill leachate discharged to a waste water treatment facility, but this is the exception to the rule.
These emerging contaminants present a real challenge on a number of fronts. Because of the potentially very high cost of monitoring and remediation, prospective purchasers should first obtain clear environmental consulting guidance whether emerging contaminants should be tested for in a site assessment. Second, in the process of performing environmental due diligence in a corporate transaction, attorneys and consultants may need to advise their clients that new site assessments be performed, including this testing, to avoid reliance on reports that pre-date the emergence of these contaminants and testing protocols. Third, if emerging contaminants are found to have caused a very significant impact, such as loss of a water supply, consider whether or not the costs can be recovered.
Franklin’s adage that “an ounce of prevention is worth a pound of cure,” certainly applies to emerging contaminants. Until the science is settled and the regulations are clear, there is simply too much uncertainty about the environmental and public health risks, potential liability and costs to remain ignorant about the possible presence of PFAS in whatever environmental media you are dealing with.