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DEP Moving Ahead with Plans to Sample for and Regulate PFAS

The Pennsylvania Department of Environmental Protection (“DEP”) has announced plans to sample for and regulate per- and polyfluoroalkyl substances (“PFAS”) in public water supplies. Specifically, DEP will sample water from more than 300 public water supplies across the state, including approximately 16 systems in York County. The sampling will begin in May 2019, with the first phase lasting approximately one year. DEP has also begun the process of setting a Maximum Contaminant Level (“MCL”) for PFAS. DEP is moving ahead with a MCL after the U.S. Environmental Protection Agency refused to commit to doing so in February 2019. DEP will also consider PFAS to be a “hazardous substance” under the Pennsylvania Hazardous Sites Cleanup Act, triggering potential cleanup liability for property owners.

In addition, DEP intends to propose cleanup standards for several classes of PFAS under the Land Recycling and Remediation Standards Act (“Act 2”) by Fall 2019. It hopes to finalize these Act 2 standards by the end of 2020. Establishing standards for PFAS will facilitate the ability of property owners to address PFAS contamination on their property and receive liability relief.

PFAS were commonly used in applications that include surface coating of paper and cardboard packaging products, carpets, non-stick pans, and textiles, as well as firefighting foams. These substances have been detected in air, water, and soil in and around production manufacturing facilities, and airports and military bases that used firefighting foams. Companies began phasing out the production and use of several PFAS substances in the early 2000s, and two of the most well studied—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—are no longer manufactured or imported into the United States. Despite the phase-out, contamination has been identified at 15 sites in Pennsylvania, each of which is being addressed by state and federal cleanup efforts. Studies indicate that various classes of PFAS can cause a wide variety of health problems. PFAS are highly mobile and persistent in the environment.

The detection of PFAS in public drinking water supplies could result in the need for suppliers to implement very expensive treatment systems. In addition, the presence of PFAS exposes property owners to potential cleanup obligations and cost recovery claims. Attorneys at Stock and Leader will continue to monitor the rapidly evolving regulatory environment related to PFAS in order to advise water suppliers and property owners on their responsibilities and potential liabilities.

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