The Nickel Report

EPA has shown a little love for states wanting action on per- and polyfluoroalkyl substances (PFAS). On February 14, 2019, EPA announced its PFAS Action Plan, calling it “the most comprehensive, cross- agency action plan for a chemical of concern ever undertaken by the Agency.” The Action Plan consists of 23 priority action items with the majority identified as short-term or generally taking place or expected to be completed in the next two years.

EPA’s PFAS Action Plan

The Plan includes:

• Drinking Water: establishing maximum contaminant levels (MCLs) for Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA)
• Cleanup: listing PFOA and PFOS as hazardous substances and issuing interim groundwater cleanup recommendations
• Enforcement: using available enforcement tools to address PFAS exposure in the environment
• Monitoring: considering PFAS chemicals for listing in the Toxics Release Inventory
• Research: developing new analytical methods to detect more PFAS chemicals
• Risk Communications: creating a PFAS risk communication toolbox

States Aren’t Waiting

However, many states are not satisfied and have indicated that they will push forward with their own policies. Seventeen states have formal policies addressing PFAS. Much like the bipartisan congressional call for EPA to act on PFAS, the states that plan to move forward are not just the blue states but are joined by some red states as well.

Maximum Contaminant Levels

The regulatory process to establish a MCL under the federal Safe Water Drinking Act typically takes years. Concerned with the possibility of further delays, at least seven states have developed policies or are pursuing policies with standards stricter than EPA's current health advisory of 70 parts per trillion (ppt) for PFOA and PFOS. They include Alaska, California, Minnesota, New Hampshire, New Jersey, New York and Vermont.

• New Jersey has a MCL for Perfluorononanoic Acid (PFNA) of 13 ppt and is proposing MCLs for PFOA and PFOS at 14 and 13 ppt, respectively.
• In New York, an advisory council recommended a MCL for PFOS and PFOA at 10 ppt.
• Vermont currently has a health advisory for any combination of five PFAS—PFOA, PFOS, PFHxS, PFHpA and PFNA—at 20 ppt. The state is planning to propose an MCL for the five chemicals at the same level.
• As a likely precursor to MCLs, California established nonbinding drinking water notification levels for PFOA at 14 ppt and PFOS at 13 ppt and a combined PFOA/PFOS combined response level at 70 ppt.
• North Carolina has set a target of 140 ppt for GenX in drinking water.

Other Notable State Actions

• Firefighting Foam: Seven states, including Washington, Minnesota, Michigan, Kentucky, Virginia, New York and Connecticut, have taken steps to prohibit PFAS in firefighting foam.
• Food Packaging: Washington, Kentucky, New York, Connecticut, Rhode Island, Massachusetts and Vermont have taken steps to prohibit PFAS in food packaging.
• Reporting: Washington, Florida, California and Vermont are also taking steps to address reporting of PFAS discharges or use in products. Oregon passed a law requiring the Oregon Health Authority to establish and maintain a list of designated high-priority chemicals of concern for children’s products.
• Health Effects: To address health effects, California and Michigan have established or required monitoring of water systems.
• Purchasing Guidelines: New York has established purchasing guidelines as part of the New York State Green Procurement program.

While the EPA Action Plan and Congressional hearings on PFAS may grab national headlines, companies need to be aware of and understand the actions states are taking and the potential impacts to their operations.