In light of the COVID-19 pandemic, Pennsylvania’s Environmental Quality Board (EQB) recently extended the public comment period for a proposed amendment to the State’s Act 2 regulations that would establish soil and groundwater medium-specific concentrations (MSCs) for three prominent members of the Per-fluoroalkyl and Poly-fluoroalkyl Acid (PFAS) family of compounds: Perfluorooctanoic Acid (PFOA), Perfluorooctane Sulfonate (PFOS), and Perfluorobutane Sulfonate (PFBS).
PFAS are man-made chemicals that—thanks to numerous highly desirable characteristics—have been widely used in countless products and applications since the 1950s. PFAS are highly 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. Establishing MSCs for three of the most common PFAS compounds represents an early but significant development in Pennsylvania’s regulatory efforts in this area.
An MSC is the concentration of a specific contaminant that must be attained by a party remediating a property in accordance with Pennsylvania’s Act 2’s Statewide health standard. As the EQB noted in its proposed amendment, establishing MSCs for the PFAS compounds will not create any liability or impose any permitting or corrective action obligations with respect to those compounds. Rather, the MSCs set the bar for parties remediating properties under the Statewide health standards, either voluntarily or pursuant to an order by the Pennsylvania Department of Environmental Protection (PADEP).
Although PFAS are not currently included among the contaminants that give rise to liability or response obligations under federal or Pennsylvania law, that could easily change in the near future. For example, should the proposed MCSs become final, PADEP could order a party to remediate these chemicals to the MSC levels. On the other hand, thanks to the liability protection that Act 2 provides to remediating parties, the establishment of MSCs for three of the most common PFAS compounds could provide an opportunity for remediating parties to preemptively protect themselves from future liability.
All comments on the proposed amendment must be received by the EQB no later than April 30, 2020. If you have any questions or want to consider providing comments, please contact Steve Miano or Peter Keays in the firm’s Environmental Practice Group.
