Legislation Seeks to Designate PFAS as Hazardous Substances

On January 14, 2019, Rep. Debbie Dingell (D-Michigan) introduced H.R. 535, known as the "PFAS Action Act of 2019." If passed, the act would require the Environmental Protection Agency to designate per- and polyfluoroalkyl substances (PFAS, including PFOA, PFOS and GenX) as "hazardous substances" under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or the Superfund law).

Manufactured and used around the world since the 1940s, PFAS can be found nearly everywhere. These substances don't break down and accumulate over time -- both in the environment and in our bodies. According to the EPA, there is evidence indicating that exposure to PFAS can lead to adverse human health effects.

PFAS can be found in

• food packaged in PFAS-containing materials, processed with equipment that used PFAS, or grown in PFAS-contaminated soil or water;
• commercial household products, including stain- and water-repellent fabrics and treatments (such as Scotchgard), nonstick products and cookware (such as Teflon), polishes, waxes, paints, cleaning products, and fire-fighting foams;
• workplaces that use PFAS (such as chrome plating, electronics manufacturing, or oil recovery);
• drinking water near facilities that manufacture or use PFAS; and
• living organisms, including fish, animals, and humans, where PFAS have the ability to build up and persist over time.

While certain PFAS chemicals are no longer manufactured in the United States as a result of phase-outs, they are still produced internationally and can be imported into the country in consumer goods such as carpet, leather and apparel, textiles, paper and packaging, coatings, rubber and plastics. Some U.S. manufacturers stopped producing PFOA and PFOS -- which received the bulk of attention from scientists -- only to replace them with other PFAS. There are hundreds of other PFAS compounds which are still in production, many of which are direct replacements for PFOA and PFOS and have similar chemical makeups. All PFAS would be designated as hazardous substances under the proposed legislation.

According to a 2016 Harvard University study, Alabama has the fourth highest concentration of PFAS in its water supply behind California, New Jersey and North Carolina. Drinking water contamination in North Alabama has been linked to the 3M plan on the Tennessee River. The BASF chemical plant in McIntosh was also identified as a point of origin for PFAS contamination.

A draft toxicological profile for PFAS issued in June 2018 by a branch of the Centers for Disease Control was put on hold by the Trump Administration and EPA. The draft report suggested risk levels of 7 parts per trillion for PFOS and 11 parts per trillion for PFOA, as opposed to the 70 parts per trillion contained in a 2016 EPA health advisory. There are currently no legal limits on the amount of PFAS that can be discharged into the environment or contained in drinking water. According to a story in POLITICO on January 28, current EPA Acting Administrator Andrew Wheeler just recently signed off on a still-unpublished decision not to regulate PFOS and PFOA under the Safe Drinking Water Act. The issue promises to be a hot topic at Wheeler's upcoming confirmation hearing.

The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.

EPA Tests Anniston Ditches for PCBs

The EPA recently finished testing ditches on the west side of Anniston for PCBs.  The agency expects to let residents know the results of those tests shortly.

Over the past decade, Anniston lawns and parks were tested and cleared of PCBs deposited over decades of heavy industry in the city.  But until now, no one had checked the ditches that border the lawns where contaminated soil has been removed.

In previous years, the Calhoun County Highway Department has insisted that it was unable to maintain the ditches because it did not want to church contaminants that might have settled there.  Leaving the ditches crowded with vegetation caused the west side of Anniston to become prone to flooding, according to a memo written by David Pirritano, Calhoun County environmental enforcement officer.  “If the right-of-way storm water ditches are contaminated and flooding takes place there is the possibility that sites … could be recontaminated as well as clean properties that didn’t contain pollutions to begin with,” the December 8, 2011 memo states.

That is unlikely, according to Yucheng Feng, a professor of environmental soil microbiology at Auburn University  Feng said that PCBs are not easily dissolved in water, and are more likely to cling to sediment and soil, making it unlikely that it would leave the ditches.  However, the likelihood that PCBs remain in the ditches is strong, she said.

If PCBs are around in the ditches at concentrations deemed to be harmful to human health, EPA has told the county that it will remove the contaminated soil.

For more, see the Anniston Star article here.

Two Lesson from EPA’s Office of Inspector General: Hire the Right Environmental Professional, and Have an Environmental Lawyer Review Phase I Site Assessments

In a report published February 14, 2011,[1] the EPA Office of Inspector General (“OIG”) flunked 35 of the 35 Phase I Environmental Site Assessments (“Phase I ESAs”) prepared by environmental professionals.  The reports had been used by EPA in support of approximately $2.1 million in brownfields grants.  Is this sampling typical of Phase I ESAs?  In our experience, yes.  And these deficiencies could place the landowner, purchaser or tenant at risk of incurring liability for the purchase or use of brownfield properties.  They could also lead to bad business decisions and improper or even dangerous decisions regarding uses of brownfield properties, possibly threatening human health and the environment.

In 2002, Congress amended CERCLA (the federal Superfund statute) to provide certain statutory defenses to liability for releases or threatened releases of hazardous substances that may endanger public health or the environment.  These so-called “brownfield defenses” are dependent upon the undertaking of an “all appropriate inquiries” (AAI) evaluation by an environmental professional[2], and for most of the defenses, a conclusion that there is no reason to believe that a release of hazardous substances has taken place and that there is not likely the potential for environmental contamination.  These reports are known commonly as Phase I ESAs and are a staple in commercial real estate transactions.  However, as the OIG recently reported, every single one of the Phase I ESAs they reviewed were deficient in some way.

The main problems that the OIG found were:

1. None of the 35 reports included the required statement certifying the qualifications of the Environmental Professional (EP) who conducted the investigation and prepared the report.  Sixteen of the 35 reports (46 percent) had a statement, but it deviated from the one specifically required by federal law.  Among the 16, either no statement was included or the required statement was abbreviated or modified.  The remaining 19 reports (54 percent) generally contained all three required sentences of the statement, but included inconsistent wording.  For example, several statements used the terms “we” and “our” when only one EP signed the qualifications statement.
2. Seven of the 35 reports (20 percent) did not include a statement regarding data gaps, which could result in the erroneous conclusion that there were none.
3. All 35 reports failed to include the required EP opinion statement in the conclusion section of the report.  Of these, 33 reports (94 percent) included deviations from the required opinion statement, such as missing, abbreviated, or modified sentences (“I” instead of the name of the environmental firm, or “general” conformance statements rather than definitive ones).  The remaining two reports generally contained all parts of the statement, but also included some minor deviations, such as rewording or additional wording and omissions that do not alter the meaning of the statement.
4. Most baffling of all, 9 of the 35 reports (26 percent) were not even signed by the responsible EP.

Users of a Phase I ESA usually just want to know if they have a “clean environmental report.”  They are placing a tremendous amount of reliance on the environmental professional to get it right.  As the OIG’s report illustrates, however, many EPs are not “dotting their I’s and crossing their T’s” when it comes to the Phase I ESA reports.  What if the EP gets the conclusion wrong?  What if there is, indeed, hazardous waste on the property?  Or what if the user knows there is contamination the property and purchases it anyway, expecting to take advantage of the bona fide prospective purchaser defense after conducting a risk assessment without digging anything up, only to find years later that the EP missed a massive plume of the same contaminant?

Is it the EP’s job – and ultimately their responsibility – to get these Phase I ESA reports right?  Absolutely.  However, if the EP is uninsured or underinsured, that may well be of little to no help to the user of the report.  In addition, most EPs attempt to limit their liability to a fixed amount in the fine print of their contracts, many times attempting to restrict their potential exposure to the amount paid for the report.  Whether these attempts by the EPs are successful or not is a topic for another day.  Nevertheless, it seems that users relying on these AAI reports are taking a risky gamble without a thorough review by an environmental attorney.  To be fair, most environmental professionals do a thorough job.  Most of the time, there was nothing wrong with the investigation they conducted or the conclusion they reached; but their reports were technically insufficient.  In some instances, the OIG was clearly nitpicking the reports, but lawsuits have been known to turn on less.  With these reports increasingly becoming a commodity, it is good for all concerned to have a trained set of eyes to review the work.  The cost of missing something could be crippling.

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[1] EPA Must Implement Controls to Ensure Proper Investigations Are Conducted at Brownfields Sites, Report No. 11-P-0107, EPA Office of Inspector General (“OIG”), February 14, 2011, http://www.epa.gov/oig/reports/2011/20110214-11-P-0107.pdf.

[2] “Environmental professional” is defined in EPA regulations, and the environmental professional conducting the ESA must meet the regulatory requirements.