Another State Takes a Seat at the PFAS Table – Developments in the Commonwealth of Pennsylvania

As an emerging issue touching most corners of the country, our firm’s lawyers report on everything PFAS. Although New York and New Jersey — the latter being one of the leaders on PFAS action — are popular subjects, we come to you today with an update from their neighbor: the great Commonwealth of Pennsylvania. A state without its own PFAS regulations, it has been taking meaningful steps in the last few months to investigate these substances.

On September 19, 2018, Governor Wolf signed an executive order that created a “PFAS Action Team,” functioning to ensure the safety of drinking water and managing environmental PFAS contamination, as well as developing a public clearinghouse of PFAS data, among other things. The executive order explicitly references the EPA’s “emerging contaminant” designation for PFAS, and that it has been “used in thousands of processes and products across every sector of the United States’ economy,” requiring a “thorough response…to identify, remediate, and mitigate PFAS sources of contamination…” and to “comprehensively assess [its] potential environmental and health effects…” The PFAS Action Team is developing a plan to sample water systems in Pennsylvania, likely to commence in early 2019. This will create another depository of important PFAS information. There have been at least 20 contamination sites identified by the PA EPA, including many military bases (of note, it is estimated that 1600 wells on or near military bases have shown high levels of PFAS).

In addition to sampling, the task force has been accepting public comments about PFAS – many of which concern a proper Maximum Contaminant Level (MCL). Although the executive order says nothing about establishing an MCL, it is understood that the PA Dep’t of Environmental Protection will evaluate the science “in order to establish a defensible and sufficiently protective” health limit. The state has also appointed a state toxicologist, which is seen as a step toward establishing an MCL. Accordingly, certain environmental groups have proposed a level of 6 ppt, which is more than 10 times stricter than the current EPA standards. It’s even more rigid than the 7 to 11 ppt suggestion by the Union for Concerned Scientists, and it’s more restrictive than New Jersey’s tough standards.

The continued attention that PFAS has garnered has spurred the development and experimentation of new treatment processes. The Pittsburgh Water and Sewer Authority (PWSA), for example, has traditionally used anthracite as a filter, but it has been reported to be ineffective at removing PFAS. Thus, PWAS has stated that it will explore “feeding powder-activated carbon” as a future treatment process. Similarly, carbon filtration devices are often used near military bases (areas with historically and relatively high levels of PFAS contamination). Thus far, the most consequential contamination sites have been found around industrial sites and military bases that had used fire-fighting foams containing PFAS.

With an estimated 14,000 sources of drinking water in Pennsylvania , advocacy groups have decried the Commonwealth’s apparent late arrival to the PFAS scene. Nevertheless, it is now taking steps to manage PFAS contamination, in part, because the federal government has not set national safe drinking water standards. With a continued wave of litigation likely, it’s no surprise that the Commonwealth is beginning to pay more attention to these ubiquitous and uncertain substances. We expect that other similarly situated states will start taking action as well.

 

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