Paul C. Sarahan is a Partner in our Austin office.

In the latest development in the federal government's efforts to develop a framework for addressing groundwater contaminated with perfluorooctanoic acid (PFOA) and/or perfluorooctane sulfonate (PFOS), the United States Environmental Protection Agency (EPA) received 372 comments to its draft Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS, which was proposed on April 25, 2019, and described in our prior blog. EPA intends for the recommendations, when finalized, to provide "a starting point for making site-specific cleanup decisions;" "clear and consistent guidance for federal cleanup programs, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as 'Superfund');" and useful information for state and tribal cleanup programs, and for other federal regulatory authorities. The comment period closed on June 10, 2019.

Several states were among the commenters, and an analysis of their respective comments provides interesting insight into how EPA's draft was received, and how the process of finalizing the recommendation might move forward. The states that provided comments include: Massachusetts, Minnesota, Kentucky, Texas, Alabama, Michigan1, Oklahoma, New Mexico2, California3, New Jersey, New York, Colorado, and Oregon.4. Michigan, New Mexico, and California had multiple submissions from various agencies of the respective state's government. In addition, two national associations (the Association of State and Territorial Solid Waste Management Officials (ASTWMO) and the Association of State Drinking Water Administrators (ASDWA)) provided comments representing the views of their respective members.

While Kentucky's Department for Environmental Protection was largely supportive of EPA's guidance, other states and associations provided significant comments and suggestions for how the guidance could be improved. The comments, while reflecting the individual interests of the respective states, did contain some common themes, including the following:

  • EPA should address and include other per- and polyfluoroalkyl substances (PFAS), a group of man-made chemicals that includes PFOA, PFOS, GenX, and many other chemicals manufactured and used in a variety of industries since the 1940s, beyond PFOA and PFOS, in the guidance document.
  • EPA should list PFOA, PFOS and other PFAS as "hazardous substances" under CERCLA, and establish maximum contaminant levels (MCLs) for these compounds in drinking water.
  • EPA should recognize that some states and localities have set lower PFAS screening values and cleanup standards than those proposed by EPA. EPA should reconsider, and lower, the PFAS guidance levels proposed to adequately protect public health.
  • EPA should recognize and adopt the values already established by states and localities as Applicable or Relevant and Appropriate Requirements (ARARs) within the CERCLA process.
  • EPA's guidance should apply to groundwater and surface water that constitute current or potential sources of drinking water.
  • EPA should develop appropriate analytical methods, sampling protocols, procedures, and best practices for PFAS-contaminated water, soil and surface water foams.
  • EPA should include in the guidance a consideration of the circumstances under which closed Superfund sites should be reassessed for PFAS issues.
  • EPA should establish a date certain to revisit its interim screening levels and preliminary remediation goals.
  • EPA should coordinate with other federal agencies to assess, address, and remove or prevent PFAS from entering the environment.

EPA will now review the comments and make any revisions it deems necessary before providing the guidance to the Office of Management & Budget for final review. Given the number and nature of the comments, it is expected that this process will take some time, potentially even into 2020. Interested parties should continue to monitor developments at the state and federal level, as there is significant action occurring to address these emerging contaminants.





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