(Like all my blog entries, this is intended to be informative but not intended as legal advice in any specific situation; and no one should be relying on any generic regulatory interpretations herein, as a substitute for careful fact-specific evaluation of regulations and guidance) .

Overview of the Problem

The answer, of course is PFAS (Per and poly- fluorinated alkyl substances). Lately we are hearing a lot in the news about Perfluoro octane Sulfonate(PFOS) and Perfluorooctanoic Acid (PFOA) as well as other types of PFAS. Environmental issues began primarily at Teflon and plastics manufacturing facilities, which utilized PFAS as a key ingredient.    Several large class action suits by downgradient residents were settled by Dupont and 3M.   By 2000 or so, concerns were also being raised about the presence of PFAS in Aqueous Film forming Foam (AFFF) [ aka “C-8 AFFF] which is effective against liquid fuel fires.   Military bases and airports relied on this foam to control damage from such fires, and they and first responders often ran fire-fighting drills with such foam. Once applied to the ground, PFASs typically migrate through soils to groundwater, allowing contaminant migration to proximate and not so proximate water supplies. By 2002, some companies had already phased out C-8 AFFF in favor of non-C-8 fluorinated surfactants. However, the U.S. military continued to procure C-8 AFFF; and manufacturing and/or use of C-8 AFFF inventory likely continued until approximately 2015. 

A noteworthy part of the story is that PFASs were not regulated drinking water contaminants and were not even being monitored. However, EPA issued a health “advisory” level in 2009 of 0.2 ug/l for PFOS and 0.4 ug/l. for PFOA.   In 2013 EPA issued an Unregulated Contaminant Monitoring Rule, requiring public utilities to have the appropriate lab tests run to detect PFAS. Two utilities in the Philadelphia region found PSA in this manner and had to shut down their wells.  DEP then commenced sampling private wells within a mile radius and supplying bottled water where necessary. In 2016, EPA issued a revised advisory level of 0.070 ug/l for PFOS and PFOA individually or together.  

As attention became focused on military bases, over 400 military bases became involved in investigating potential PFAS contamination. As of 2017, there were 90 facilities (including the Willow Grove naval air facility) with levels above the 2016 EPA health advisory of 0.070 ug/l.  trying to deal with a PFAS site investigation that typically shows off-site migration and potential impact to both private wells and public water supply wells. Included in that list is the former naval air station at Warminster, PA.  


1.     There is no federal drinking water standard (MCL) ; but EPA’S ACTION PLAN FOR PFAS, announced in February 2019, includes efforts to promulgate drinking water standards. The Plan also calls for efforts to regulated PFAS as hazardous substances under CERCLA, even before final promulgation of new MCLs. Until that occurs, there is no statutory jurisdiction for recovery of cleanup costs associated with PFAS;    And several states have promulgated standards as low as 0.014 ug./l.  Pennsylvania has also announced plans to propose drinking water standards for PFAS. Such standards are likely to be lower than EPA’s current 0.70 ug/l guideline.  New Jersey and other states are heading toward a standard of 0.14 ug/l. 

2.       Studies are indicating that PFASs are very persistent in the environment.  They move from groundwater to surface water, up the food chain into human tissue and blood and mothers’ milk, and into sewage treatment effluent and sludge, and landfill waste.  Thus, a public water supply well can easily have a PFAS impact without an obvious local source.  


3.     The same is true for groundwater samples taken at any site for due diligence or for remedial site investigation. Thus, there will be a number of sites where testing for PFAS in groundwater will be prudent.  However, the source will not normally be on site and may not even be nearby. Government investigations of potential sources will be slow and often unproductive.  Private and public claims for cost reimbursement may be likewise unproductive.                                               


4.     Recent reports confirm that PFAS- impacted groundwater may have as many as 100 or more PFAS variations (both precursors to and breakdown products of PFOA and PFOS).  Many of these likely pose similar health risks, but have not even been researched, and are not covered by current EPA health advisory numbers. Some of these substances require unique testing methods, and some of those methods may not be readily available to commercial labs   Some of these “variations” will undoubtedly join PFOA and PFOS as specific substances of concern in the future. Until then, any groundwater sampling which ostensibly “addresses” PFAS issues will need to be evaluated very carefully, to determine what can be learned and what cannot currently be learned. 


5.     Replacement products for C-8 AFFF can still be problematic—because PFASs with chains longer than 8 carbons can break down into C-8 chemicals.  


6.     It is noteworthy that any public OR private well recently discovered to have PFAS, may have had the contaminant for several decades before discovery. By the same token, any individual who has not lived in their home for their entire life, may have had PFAS exposure elsewhere, in addition to any current exposure.  This will undoubtedly further complicate forensics efforts in PFAS cases.  


7.     While the regulatory agencies try to get their arms around the problem numerous class action law suits, by residents affected by regional PFAS groundwater contamination, will continue in the courts, against the companies who previously manufactured AFFF containing PFAS, and the governmental or private parties owning properties from which contamination is spreading.  


The take home point would be that PFAS contamination poses huge liability for foam manufacturers, the military, and some private property owners, and significant costs for impacted local water supply utilities.  And residents who use on- site wells for potable water, will be the last to know of potential health concerns, if PFAS is found in a local public water supply. Significant effort has been devoted to studying and responding to the PFAS problem.  Nevertheless, we are still in the very early stages of accurately identifying the health risks and identifying all the areas of regional contamination which require attention.