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PFAS Substances Not Just a Groundwater Concern in Pennsylvania

On September 23, 2021, the Pennsylvania Independent Regulatory Review Commission approved a final-form regulation establishing under Act 2 and Chapter 250 statewide health standard medium-specific (MSC) concentrations of PFAS substances for soil and groundwater remediation in Pennsylvania.  This is the first time regulatory cleanup levels have been promulgated for PFAS substances in Pennsylvania.  The proposed final-form regulation is not yet in effect and must first be approved by the Office of Attorney General and published as final in the Pennsylvania Bulletin

  • The regulated substances include:

    Soil MSCGroundwater MSC
    PFOA4.4 mg/kg (residential)
    64 mg/kg (non-residential)
    0.07 ug/L
    PFOS4.4 mg/kg (residential)
    64 mg/kg (non-residential)
    0.07 ug/L
    PFBS66 mg/kg (residential)
    960 mg/kg (non-residential)
    10 ug/L (residential)
    29 ug/L (non-residential)
  • Establishing the MCLs does not create new liability for owners of contaminated property.  Instead, MCLs provide uniform remediation targets to regulators when addressing PFAS-contaminated sites under other laws in Pennsylvania.  
  • Recently, the District Court of the Eastern District of Pennsylvania on remand held that a citizen suit under Pennsylvania's Hazardous Sites Cleanup Act ('HSCA") could not advance because PFOS and PFOA are not "hazardous substance[s]" as defined by HSCA.  If the MCLs are finalized, this could be another step toward designation of these substances as a hazardous substance under HSCA, which could be an additional avenue for litigation over these substances.
  • Pending bills in the 2021-2022 state legislative session include a prohibition on certain uses of firefighting foams containing PFAS substances (S.B. 302) and a prohibition on the use of PFAS-containing food packaging (H.B. 1965). 

As PFAS substances are emerging contaminants of concern, updates on PFAS regulation are likely to develop quickly and vary among the states, while the Biden Administration has already made clear that it intends to prioritize addressing PFAS concerns. 

Although the science is still evolving, the Department believes these new MSCs will provide remediators a means of addressing PFOS, PFOA, and PFBS groundwater and soil contamination in this Commonwealth.

Tags

environment, chemicals, remediation, ehs

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