Written by Jeffrey R. Porter, Mintz Law

Yesterday, I spoke with Sarah Mattalian, an Inside EPA reporter writing a story about the suggestion by an EPA official that EPA might require additional PFAS investigations and clean up at properties that had already been remediated owing to the presence of other chemicals in soil and groundwater. 

According to Ms. Mattalian’s reporting, some find that suggestion surprising.  I have no idea why.

Since EPA announced its PFAS Road Map two years ago, EPA has been crystal clear that it has concluded that the presence in the environment of the forever and everywhere chemicals known collectively as PFAS is an “urgent public health and environmental issue.” 

Everything that EPA has done since then is consistent with its dire conclusion, including the proposed listing of the two most commonly detected PFAS as “hazardous substances” subject to the requirements of CERCLA.  EPA also proposed a drinking water Maximum Contaminant Level, or MCL, of 4 parts per trillion for those PFAS.

Some states, like Massachusetts, require action for even lower concentrations of PFAS but every state standard is so stringent that it is virtually at the limit of what can be reliably detected.  Since we’re still putting PFAS into our environment every day, it should come as no surprise that they would be present in soil and groundwater many places, including already remediated Superfund sites, at concentrations that EPA and many States now find very concerning.

And it should also come as no surprise that EPA isn’t waiting for its CERCLA listing of some number of PFAS to take stock of those already remediated Superfund Sites needing a relook for the possible presence of PFAS in the environment at these miniscule concentrations.

In August, while you may have been at the beach, EPA rescinded its December 2019 guidance which suggested a focus on drinking water and the application of a “preliminary remediation goal” much higher than the one EPA would now propose though still miniscule (70 parts per trillion).

EPA said it was rescinding this guidance “because it no longer reflects the best, currently available science.  In addition. . . public health will be better protected because site managers will resume using well-established processes for making site-specific decisions that can protect people from pollution.”  Those “well-established processes” include the consideration of potentially applicable state standards, including those more stringent than EPA’s.

So, yes, EPA is doing exactly what it said it was going to do and getting where EPA says we need to get when it comes to PFAS in our environment is going to cost billions and billions of dollars. Some of those billions were provided in the Inflation Reduction Act but many billions more will be needed and many of those billions will come from those who have manufactured PFAS and used them in thousands of ways since the mid-20th century, many of whom continue to do so today. 

About the Author

With over three decades of litigation and transactional experience, Jeffrey R. Porter is widely recognized as one of the top environmental lawyers in the country. Clients seek him out to solve complex environmental law challenges.

Some of the largest global companies rely on Jeff’s insights and strategic guidance. Clients praise him as “the top environmental attorney you will find in Boston” and say his “judgment on sensitive political issues is invaluable.” Jeff is ranked Band 1 by Chambers USA which says “Jeff has deep knowledge of environmental law and marries current knowledge with an understanding of the political and policy environment.”