Pennsylvania’s Environmental Quality Board (EQB) proposed an amendment to Act 2, Pennsylvania's Brownfield and voluntary cleanup program.

The amendment was proposed February 15, 2020. It updates existing statewide health standard medium-specific concentrations (MSCs) based on the latest scientific information.

Amendment Overview

The proposal adds MSCs for three new PFAS contaminants: Perfluorooctanoic Acid (PFOA), Perfluorooctane Sulfonate (PFOS), and Perfluorobutane Sulfonate (PFBS).

PFAS are highly durable chemicals that have been used for more than 50 years in a variety of applications, including in non-stick cookware and carpet protectant and in the manufacturing of cell phones and other electronic devices. They have important oil-, water-, temperature-, and fire-resistant attributes as well as electrical insulating properties, but persist in the environment and have been allegedly linked to a number of health concerns.

These new MSCs create new risk-based standards for groundwater and soil. The proposed standards for these PFOA, PFOS, and PFBS are based on data in toxicological studies published by the EPA. DEP has directly incorporated the EPA's 2016 health advisory levels (HALs) regarding PFOS and PFOA as groundwater MSCs and has used the data developed by the EPA for those HALs to calculate soil MSCs for both compounds. With respect to PFBS, the DEP is proposing soil and groundwater standards based on a 2014 EPA Provisional Peer-Reviewed Toxicity Value.

The new MSCs do not create liability. Rather, they provide remediators with a guideline for addressing contamination, and thus, reducing public exposure to the contaminants and perhaps providing remediators with a shield against liability when and if PFAS make it onto hazardous waste or hazardous substance lists.

Act 2 does not create liability for, or the obligation to, address contamination for these and other chemicals. The proposed rule states that instead, that obligation to remediate PFAS comes from other environmental statutes, including The Clean Streams Law (35 P.S. §§ 691.1—691.1001) and the Solid Waste Management Act (35 P.S. §§ 6018.101—6018.1003). Indeed, the Clean Streams Law’s definition of a “pollutant” is considered broader than “hazardous waste” and “hazardous substance.”  

However, under those statutes DEP probably has limited authority to create the referenced liability for PFOA, PFOS, and PFBS remediation, although DEP, under the Safe Drinking Water Program, could order offline water supply wells when concentrations of PFOA and PFOS are found to exceed the EPA health advisory level for drinking water of 70 ppt.  In any event, there is no federal or state enforceable Maximum Contaminant Levels (MCLs). Additionally, under the Solid Waste Management Act, PFAS are not hazardous substances, and therefore, EQB’s claim of SWMA-related obligations for PFOA, PFOS, and PFBS remediation are not enforceable until those contaminants are listed as hazardous substances. See e.g. Kristen Giovanni et al. v. U.S. Department of the Navy, case number 2:16-cv-04873, and Dorothy Palmer et al. v. U.S. Department of the Navy, case number 2:17-cv-00765 (holding PFOS and PFOA are not hazardous substances in Pennsylvania under the Hazardous Sites Cleanup Act of 1988).

Proposal Specifics

The relevant MSCs for PFOA, PFOS, and PFBS are included in Tables 1, 3a, and 3b of the proposal. Table 1 provides groundwater MSCs. For PFOA and PFOS, the groundwater MSCs are the same across residential and non-residential properties as well as across used and unused aquifers. The MSC is only different for used aquifers with total dissolved solids greater than 2500 mg/L. Groundwater MSCs for PFBS vary across residential and non-residential properties as well as across used and unused aquifers. Overall, PFBS MSCs are much higher than PFOS and PFOA MSCs for groundwater.

Table 3a provides soil MSCs for PFOA, PFOS, and PFBS, which vary between residential, non-residential, surface, and sub-surface soils. Table 3b provides soil to groundwater numeric values.

Public Participation

The Board must receive comments, suggestions, support, or objections by April 14, 2020. There are three ways to comment. Submit comments online here, email comments to RegComments@pa.gov, or send to the following address: Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477.

The Board will hold three public hearings to gather feedback on the proposal. The following hearings are scheduled for 6 p.m.

• March 17, 2020, at the Pennsylvania Department of Environmental Protection (DEP) Southcentral Regional Office, 909 Elmerton Ave., Harrisburg
• March 18, 2020 at the DEP Southwest Regional Office, 400 Waterfront Drive, Pittsburgh
• March 25, 2020, at the Warminster Township Library, 1076 Emma Lane, Warminster