April 29, 2019

EPA Issues Draft Interim PFAS Guidelines for Public Comment

Holland & Knight Energy and Natural Resources Blog
Dianne R. Phillips

On April 25, 2019, The U.S. Environmental Protection Agency (EPA) announced issuance of Draft Interim Recommendations to Address Groundwater Contaminated with Perfluorooctanoic Acid and Perfluorooctane Sulfonate. According to EPA, the guidance is based on the EPA's current scientific understanding of per- and polyfluoroalkyl substances (PFAS) toxicity and is intended to provide clear and consistent guidance for federal cleanup programs, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as Superfund). Specifically, the guidance provides recommendations on:

  • Screening levels, which are used to determine if levels of contamination may warrant further investigation;
  • Preliminary remediation goals (PRGs) to inform site-specific cleanup levels for PFOA and PFOS contamination of groundwater that is a current or potential source of drinking water.

According to the Posting Memorandum the guidelines will be open for public comment from April 25, 2019 through June 10, 2019. Comments may be submitted to the online docket. As described in a recent article in The New York Times, the OMB Review Redline shows substantial changes were made to the final draft posted for comment, which are likely to garner significant public interest.

Specifically, the entire section related to Removal Management Levels was deleted, including the below introductory section:

By definition, a removal action would not be used to address groundwater cleanup. It could, however, be an appropriate response action if the groundwater is, or could potentially be, used as drinking water. Removal management levels (RMLs) are a tool to help make a determination when an EPA removal action is warranted. RMLs are chemical- and media-specific concentrations that may be used to support a decision for EPA to undertake an action using CERCLA authority and funding (USEPA, 2018). The purpose of the RMLs is to help define areas, contaminants and conditions that may warrant a removal action at a site; they do not cover every conceivable situation that EPA might need to address in the remedial phases of a cleanup. Sites where contaminant concentrations fall below RMLs are not necessarily "clean," and further action or study may be warranted under the Superfund program (USEPA, 2018). For example, the NCP states that "actual or potential contamination of drinking water supplies or sensitive ecosystems" is one factor to consider in determining the appropriateness of a removal action, which could be "any appropriate removal action to abate, prevent, minimize, stabilize, mitigate, or eliminate the release or threat of release." 40 CFR 300.415(b). On a case-specific basis, EPA may need to take action because of combinations of chemicals, chemical-specific factors, unusual site-specific circumstances, the finding of a public health hazard by the Agency for Toxic Substances and Disease Registry (ATSDR), ecological risk, or other case-specific considerations (USEPA, 2018).

As noted by The New York Times, this means that the recommended removal action level of 400 parts per trillion (ppt) was deleted and the Interim Recommendations in effect make no recommendation concerning what level of contamination requires "immediate" action under Superfund, which governs many Department of Defense (DoD) federal facilities. As described in the recent testimony of Maureen Sullivan, Deputy Assistant Secretary of Defense for Environment, DoD, "DoD follows the CERCLA process to fully investigate the release and determine the appropriate cleanup actions based on risk. These known or suspected PFOS and PFOA release areas are in various stages of assessment, investigation, and cleanup." She further testified that "DoD has identified 401 active and former (Base Realignment and Closure) installations with at least one area where there is a known or suspected release of PFOS or PFOA." Consistent with longstanding CERCLA policy, DoD is addressing these sites according to the "worst first" prioritization method. There are no details provided, however, on how many of the 401 sites have confirmed PFAS contamination in excess of the now-deleted 400 ppt threshold. Given the Congressional hearings held previously as described in a prior blog post we can expect further hearings seeking updates.

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