By Steve Miano and Pete Keays

In November 16, 2021, the Pennsylvania Environmental Quality Board (EQB) approved the Pennsylvania Department of Environmental Protection’s (DEP) proposed rule that would set maximum contaminant levels (MCL) for two prominent members of the per-fluoroalkyl and poly-fluoroalkyl (PFAS) family of compounds: perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).

Often referred to as “forever chemicals,” PFAS are man-made compounds that, thanks to numerous highly desirable characteristics, have been widely used in countless products and applications since the 1940s. PFAS are extremely durable and persist in the environment and the human body. In recent years, certain evidence has linked PFAS to a number of adverse effects in laboratory animals and humans. As a result, they have come under intense scrutiny by federal and state lawmakers and regulators.

The Pennsylvania Safe Drinking Water Act empowers the EQB to establish MCLs, which are defined as “the maximum permissible level of a contaminant in water which is delivered to any user of a public water system.” 25 Pa. Code § 109.1. The proposed MCLs for PFOS and PFOA are 18 parts per trillion (ppt) and 14 ppt, respectively, which are considerably lower than the current 70 ppt Health Advisory Level set by EPA (which is non-enforceable). However, the proposed MCLs are in line with the MCLs recently established by neighboring New Jersey (14 ppt for PFOA and 13 ppt for PFOS) and New York (10 ppt for both substances).

DEP intends to publish the proposed rule for comment sometime in 2022. If they are ultimately promulgated, the MCLs will present a host of challenges to the over 3,000 public water systems in Pennsylvania to which they will apply. Over the past decade, a range of PFAS treatment techniques and systems have been developed, refined, and improved. Nevertheless, attaining, and testing for these very low levels of PFOS and PFOA required by the MCLs will likely prove a heavy, and potentially costly, lift for many operators. Moreover, such extremely low levels for these substances may also raise a host of legal issues for water providers (and potentially for landowners whose property contains groundwater contaminated with PFOA or PFOS). Public water system operators would therefore be well served by immediate planning for the implementation of the PFOS and PFOA MCLs with their technical and legal teams.

DEP regulations targeting PFAS are unlikely to end with drinking water MCLs. DEP is in the process of establishing minimum soil and groundwater cleanup levels for three PFAS constituents under the Act 2 voluntary remediation program. Beyond that, it may simply be a matter of time before DEP includes PFAS limitations and other requirements in discharge permits from wastewater treatment plants and other facilities. EPA is also considering implementing various PFAS regulations under several federal environmental statutes. What is certain is that PFAS regulations are highly likely to impact a growing number of Pennsylvania businesses, municipalities, and landowners in the coming years.

Please don’t hesitate to contact Steve Miano or Pete Keays for further information.