the evolving pfas regulatory landscape€¦ · 10/06/2019  · • pfas are used to make everyday...

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The Evolving PFAS Regulatory Landscape

June 5, 2019

© 2019 Winston & Strawn LLP

Today’s Webinar Presenters

Sam Trimbach Associate AttorneyChicago+1 312-558-7552strimbach@winston.com

Matt WalkerPractice AttorneyChicago+1 312-558-7514mwalker@winston.com

Geosyntec Consultants+1 (312) 416-3938jwilkie@geosyntec.com

Jennifer Wilke

© 2019 Winston & Strawn LLP

Agenda• Technical Background

• What are PFAS? What are they used for?

• Sampling and Remedial Issues

• Current and Potential Future Federal Regulation• Safe Drinking Water Act

• EPA Action Plan and Guidance

• State Regulation• Specific States

• Interplay with Federal Regulations

• Enforcement Actions

• Key Takeaways

What are PFAS Compounds?

• PFAS = Per- and Poly- Fluoroalkyl Substances

• Class of synthetic compounds containing thousands of chemicals

• Carbon–Fluorine (C-F) bond is the shortest and strongest in nature

• PFAS are used to make everyday products:– Resistant to stains, heat, oil, grease, and water

– Reduce wear and surface adhesion

• Introduced in the 1940s (Teflon) with increased uses in the late 1960s and 1970s

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PFAS Nomenclature

PFAS

carboxylic acids

sulfonic acids

Precursors

PFOA

PFOSPer-

Poly-

telomers

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Per- and Poly- Fluorinated

CC

C C CC C C

F F F

F FFF

F

Perfluorinated = Complete Fluorination

PFOS (Perfluorooctane sulfonic Acid)

PFOA(Perfluorooctanoic Acid)

CC

C C CC C C

F F F

F FFF

F

H

H

Polyfluorinated = Incomplete Fluorination

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Precursors

CC

C C CC C C

F F F

F FFF

F

H

H

Precursors = Polyfluorinated, Telomers

Perfluorinated (Stable/Persistent)

Precursors are Polyfluoroalkyl substances that can undergo transformations to form Perfluoroalkyl acids (such as PFOA and PFOS)

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Oil and gas – enhanced recoveryPaints, varnishes, sealants, waxes and polishesPaper coatingsPerformance chemicalsPersonal care products

− Cosmetics− Bug spray− Sunscreen− Dental floss

PharmaceuticalsPhotolithographyPlasticsPolymer manufacturing, ResinsSemiconductorsStain repellantsTextiles

− Weather resistant apparel and equipment− Stain resistant fabrics

Wastewater treatment plants − Effluent− Biosolids

Wire manufacturing and coating

Aqueous film forming foams (AFFF)− Airports− Fire Training Facilities− Bulk Storage Facilities/Terminals/Refineries− Building Fire Suppression Systems− Gas Station Fire Suppression Systems− Military

AerospaceAlternative energyAutomotiveBuilding and constructionChemical manufacturingElectronicsFuelsHealthcareHydraulic fluidsIndustrial surfactantsLandfills – leachate, odor and dust controlLeatherMedical

− Implants, patches and grafts− Low friction coatings

Metal plating and etchingMining

− Odor and dust control− Enhanced recovery

Uses and Environmental Sources

“The only places we’re not finding PFAS are places we’re not looking”

Heidi Grether, Former Director, Michigan DEQ (now EGLE)

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• Branched versus Linear Isomer Analysis– Historically, PFAS were manufactured by electrochemical fluorination (ECF) or flurototelomerization (FT) – ECF yields a mixture of branched and linear PFAS isomers at a ratio of ~30:70 while FT produces only linear

and even-numbered chain PFAS compounds

• Example Application:– Analysis of C8 compounds may be used to suggest that PFOA and PFOS detected in a receptor likely originated

from different manufacturing processes implying multiple sources and potentially responsible parties • Average % Branched PFOS = ~35% • Average % Branched PFOA = ~10%

PFAS Forensics in Practice

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PFAS Forensics in Practice (cont.)

• Compound Ratio Analyses– Compound ratios of perfluoroalkyl acids (PFAAs) and other PFAS

compounds can be utilized to demonstrate unique signatures from different sources and provide evidence of multiple inputs to a receptor

• Indicator Compounds– Some PFAS compounds are strongly linked to specific production processes

and/or sources and may be used to infer ages and mechanisms of releases Source Area 1

SignatureImpacted Receptor

Source Area 2 Signature

Sulfonamide Precursors Fluorotelomer PrecursorsPerfluoroalkyl Acids (PFAAs)May undergo transformation to PFAAs May undergo transformation to PFAAs

ECF Indicator FT Indicator

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Human Exposure Pathways

• Major1,2

– Drinking water – Incidental soil/dust ingestion– Diet (bioaccumulation)

• Fish and seafood• Homegrown produce• Agriculture

• Usually insignificant or minor– Dermal absorption– Inhalation

1 Oliaei et al., 2013. Environ. Sci. Pollut. Res. Manag. 20:1977-19922 Domingo, 2012. Environment International 40:187-195

For Internal Use – Not for Distribution

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Chicago Tribune Monday June 3, 2019

• FDA testing of food items bought in 2017 from undisclosed mid-Atlantic cities

• PFOS detected in nearly half of the meat and fish sampled: 134 to 865 ppt

• Chocolate cake: 17,640 ppt PFPeA

• PFAS contaminated milk reported near an Air Force base

• PFAS found in leafy green vegetables grown within 10 miles of a PFAS plant

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EPA’s Drinking Water Health Advisory Level

In 2016, EPA finalized drinking water health advisories for PFOS and PFOA

70 ng/L (combined)

70 nanograms per liter (ng/l) = 70 parts per trillion (ppt) = in 7.5 billion

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Site Investigation Challenges

• Field preparation and planning: PFAS-specific SOPs are important– Avoid cross-contamination and false positive results since PFAS are potentially present in variety

of commonly-used materials– Low detection limits

• Sampling considerations− Clothing− Sampling equipment− Food packaging− Vehicles− Cosmetics, sunscreen, bug spray− Personal protective equipment

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A new era of “pump and treat” and “muck and truck”

• Excavation and incineration is the primary approach for soils

• Adsorption onto granulated activated carbon (GAC) is the most widespread full-scale treatment method currently used for groundwater

• Other sorption and filtration processes– Membrane filtration– Ion exchange– Nano-filtration and reverse osmosis

• Need for Destructive Technologies

Treatment Technologies

Innovative technologies are being identified and funded for development and demonstration by the DoD

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Demonstration of Smoldering Combustion for Treatment of PFAS Impacted Investigation-Derived Waste [Geosyntec February 2019]

• PFAS adsorbed to carbon (e.g., spent GAC) or to soil can be treated using smoldering combustion resulting in non-detectable levels

• Complete destruction of PFAS is possible

• Results support full-scale (ex and in situ) application

or waste product

www.serdp-estcp.org/Program-Areas/Environmental-Restoration/ER18-159316

Takeaways

• Growing public scrutiny• Widespread occurrence• PFAS are still present in and key to many industrial and consumer products• Treatment is possible, but expensive• Uncertainty regarding regulatory criteria (EPA vs. States)• Determining liability for releases is challenging

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Key U.S. EPA Regulatory Events

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Toxic Substances Control Act• 2002: Voluntary phase out of PFOS, Significant New Use Rules (SNURs) under TSCA

covering 88 related PFAS compounds• 2006: Launch of the 2010/2015 PFOA Stewardship Program, voluntary phase out program

for a certain PFAS compounds that included PFOA• 2015: Proposed SNUR related to 2010/2015 PFOA Stewardship Program (still pending)• Ongoing: New Chemicals Program review of replacement PFAS compounds as they are

developed

Safe Drinking Water Act• May 2012: Unregulated Contaminant Monitoring Rule 3, which includes six PFAS, including

PFOA and PFOS• All large public water systems serving more than 10,000 people and some smaller

systems• 2013-2015: UCMR 3 sampling conducted at 4,920 public water systems nationwide• May 2016: Lifetime health advisory under Safe Drinking Water Act for PFOA and PFOS• January 2017: Final data from UCMR 3 published

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Federal Regulation - SDWA

• Drinking Water Health Advisory –70 parts per trillion• Non-enforceable, non-regulatory

• Only applies to drinking water, not to ingestion of food containing PFAS

• Emergency Authority (4 PFAS sites since 2002)

• February 2019 PFAS Action Plan indicated EPA is moving toward setting MCL for PFOA and PFOS

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Federal Regulation - CERCLACURRENT

• PFAS are not currently regulated under CERCLA as hazardous substances• EPA can require cleanup of PFAS if imminent and substantial danger

• EPA can require cleanup of PFAS if secondary contaminant

FUTURE

• February 2019 EPA Action Plan: EPA considering listing PFOA and PFOS as hazardous substances

• Federal legislators considering bills that require EPA to designate all PFAS as hazardous substances under CERCLA within one year

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Federal Regulation – Cleanup Recommendations

Draft “interim” cleanup guidance published April 2019

• 40 ppt screening level for PFOA, PFOS individually

• 70 ppt preliminary remediation goal for PFOA, PFOS individually or combined (unless more stringent state standard)

• Applies to groundwater that is a “current or potential” source of drinking water

Comment Period Ends June 10, 2019

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Federal Regulation – Other AvenuesFUTURE

• TSCA – New PFAS will be reviewed prior to commercialization• EPA would issue Significant New Use Rules, which limit future uses without EPA oversight\

• EPCRA – could be required to include PFAS in toxic release inventory reporting

• Clean Water Act – could create effluent limitations

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• While a lot is on the horizon for potential federal regulation, current federal regulation is very limited

• Many states have decided to implement their own regulations

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PFAS in UCMR 3• Unregulated Contaminant Monitoring Rule

• unregulated contaminants

• occurs every five years

• Large public water systems (PWS) serving more than 10,000 people and a limited number of smaller systems

• 4,920 PWS tested nationwide

• Included PFOA, PFOS, PFNA, PFHxS, PFHpA, PFBS

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Findings in UCMR 3

• PFAS found in 194 public water systems

• PFOS: .9% of systems > 70 ng/L

• PFOA: .3% systems > 70 ng/L

• 75% of detections in 13 states California, New Jersey, North Carolina, Alabama, Florida, Pennsylvania, Ohio, New York, Georgia, Minnesota, Arizona, Massachusetts, and Illinois

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States with standards or guidance at EPA’s 70 ng/L (ppt) health advisory level

Alaska: Action Level*Colorado: Site GW Quality Standard* Connecticut: Action Level*Delaware: Reporting LevelIowa: State GW StandardMaine: Remedial Action

GuidelinesMaximum Exposure Guidelines

Massachusetts: Health AdvisoryMichigan: Drinking Water GuidelinesNew Hampshire: GW Quality Standard*Pennsylvania: Medium Specific

ConcentrationRhode Island: Health Advisory

*= Enforceable standard

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States with more stringent numeric criteriaMinnesota (health based standard)35 ng/l for PFOA 15 ng/L for PFOS

Vermont (GW enforcement standard)20 ng/L for PFOA and PFOS, HAL for sum of 5

New Jersey (MCL)14 ng/L (PFOA)13 ng/L (PFOS)Interim Class II GW10 ng/L for PFOA and PFOS

California (drinking water notification)14 ng/L for PFOA13 ng/L for PFOS

Alaska (Cleanup Standard)400 ng/L for PFOA and PFOS

Texas Tier I Protective Concentration Level for 14 different PFAS, in addition to PFOA and PFOS

North Carolina GenX: Criteria Assessment

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Other states – Illinois? • Four Illinois PWS identified with PFAS

during UCMR 3

• Known contamination at former Chanute Air Force Base in Champaign County

• Illinois Groundwater Advisory Council to recommend EPA HAL of 70 ng/L standard for PFOA and PFOS

• Illinois EPA to initiate testing of wells and intake sources for community water supplies

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Wisconsin • No PFAS water quality standards in place, using

EPA's HAL

• March 2018 – WI DNR requests Division of Public Health provide health-based groundwater quality recommendations for PFOA and PFOS

• January 2019 - WI DNR grants petition to develop health advisory standard for PFAS

• PFAS Technical Advisory Group formed in February 2019

• April 2019 - WI DNR requests Division of Public Health provide health-based groundwater quality recommendations for all PFAS compounds

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North Carolina• Interim Maximum Allowable

Concentration (IMACs) for PFOA (Carbon 8) set at 2 ug/L (parts per billion) set December 6, 2006

• State focus on PFAS replacement compounds such as GenX

• Updated risk assessment for GenX at 140 ng/L (Perfluoro-2-propoxypropanoic acid)

• Chemours manufactured in Fayetteville, NC since 2010

• Cape Fear Public Utility Authority filed federal suit alleging CWA, RCRA, SDWA and cost recovery

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Other regulatory programs: Consumer Products Laws

• November 2017 – California lists PFOA and PFOS as Developmental Toxicant under California’s Prop 65• Warning requirement became effective on November 10, 2018

• “Clear and reasonable warning” - labeling requirements for manufactures, distributors, and retailers

• Discharge prohibition effective on July 10, 2019

• Washington has required reporting of PFOA in children’s products, and proposed rules to include PFOS

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At risk industries using PFAS

• Industrial Coatings and Etchings• Used as mist suppressant and in plating

baths

• Class B Firefighting Foams• Airports, fire protection equipment

• Carpet and textile products• Landfills represent a logical end-of-life

reservoir for PFAS

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New Jersey Directive• March 2019 – DEP issues directive to

Solvay, DuPont, Dow DuPont, Chemours and 3M• Requires detailed accounting of PFAS use and

discharge through wastewater treatment plants, air emissions, and sales of products

• Seeks information on current development, manufacture, use and release of newer PFAS products

• Seek to hold financially accountable for remediation and treatment

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Production Plated PlasticsRichland Township, Michigan • Production Plated Plastics manufactured, electroplated and painted plastic

automobile parts in 1970’s

• Wastes included chromium, copper, and nickel

• Company declares bankruptcy in 1990

• The state operates a groundwater pumping system at the site meant to prevent groundwater contaminated with chromium, nickel and volatile compounds from migrating offsite

• Pumps discharge directly into the sanitary sewer system that flows back to the city of Kalamazoo's wastewater treatment plant

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Production Plated Plastics- Findings• A sample collected

on April 13 found 8,000 ppt of PFOS being discharged

• Sampling expanded to 82 residential wells• 3 wells ranging from 114

ppt and 202 ppt

• 23 wells at levels below 70 ppt

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Production Plated Plastics - Response

• MDEQ installed a $700,000 emergency carbon filtration system at the site

• Expanded private well testing

• Bottled water provided to citizens

• Reopening of PPP site

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New Hampshire – May 29, 2019

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New Hampshire – 2016 through 2018

Nov 2016 PFAS Sampling Requested

May & Oct 2017 PFAS Sampling Required by end of 2018

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Massachusetts – April 2019

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Hudson, MA Site – Timeline

Feb 2019Residents notified of PFAS exceedance in water systemTown removes highest concentration well from service

Mar 2019Geosyntec contracted by the three potentially responsible parties to provide a 700 gpm emergency PFAS treatment facility

Apr 2019 Design report submitted for state and local approvals

May 2019Town begins distribution of bottled water to all residentsSite prepared/graded and treatment equipment ordered

June 2019 (proposed)

Equipment to be deliveredSystem startup by end of June 2019

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Hudson, MA Site - Challenges

• Aggressive Schedule• Working for all three responsible parties• Equipment must be currently available and ready to ship• Available treatment equipment is in short supply nationally • All components must be NSF certified and Teflon free• Construction contractors are very busy

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Key Takeaways

• Sampling for PFAS is difficult and expensive

• Remediating PFAS is difficult and expensive

Review supply chain and manufacturing processes to reduce or eliminate PFAS in facilities

Review contracts and require suppliers to provide contractual warranties and indemnities related to PFAS

In transactional context, conduct appropriate diligence and includeprotective representations and warranties and indemnities.

Questions?

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Thank You

Sam Trimbach

Associate AttorneyChicago+1 312-558-7552strimbach@winston.com

Matt WalkerPractice AttorneyChicago+1 312-558-7514mwalker@winston.com

Geosyntec Consultants+1 (312) 416-3938jwilkie@geosyntec.com

Jennifer Wilke Eleni Kouimelis

PartnerChicago+1 312-558-5133ekoumiles@winston.com