Pennsylvania Is Moving Ahead with Regulating PFAS
Pennsylvania is taking steps to regulate PFAS. As recently discussed in a Special Alert, on November 20, 2021, amendments to regulations implementing the Pennsylvania Land Recycling and Environmental Remediation Standards Act (Act 2) went into effect, which add for the first time groundwater and soil medium-specific concentrations (MSCs) for perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS) and perfluorobutane sulfonate (PFBS). 51 Pa. Bulletin 7173 (Nov. 20, 2021). These new standards have broad implications for projects, both within and outside of those arising under Act 2. Any property participating in the Act 2 program and using the statewide health standard will now be able to demonstrate attainment with these MSCs to be afforded liability relief for releases of these types of compounds. In addition, through the incorporation of the numeric values under Act 2 into PADEP’s Management of Fill Policy, PFOA, PFOS and PFBS will now need to be evaluated as part of a clean fill demonstration if there is a reason based on due diligence to believe that a release of these compounds may have occurred.
In addition, on November 16, 2021, the Environmental Quality Board approved a proposed rule to set Pennsylvania-specific maximum contaminant levels (MCLs) for PFOA and PFOS in drinking water. The proposed MCL for PFOA is 14 parts per trillion (ppt) and 18 ppt for PFOS. These proposed MCLs are slightly higher than New Jersey’s MCL of 13 ppt and 14 ppt for PFOA and PFOS, respectively. The proposed rule will be published in the Pennsylvania Bulletin in early 2022, which will trigger a 60-day public comment period. Once finalized, the rule will apply to all community, nontransient, noncommunity, and bottled, vended retail, and bulk water systems. It is also likely that the state MCLs will also become cleanup standards for groundwater under Act 2 and may have influence on other state regulatory programs. Because federal MCLs for PFAS are in the works, it is unclear how conflicts between state and federal MCLs, to the extent that they exist, will be resolved.