Florida Bar Journal

PFApocalypSe Now: The PFAS Firestorm and Implications for Florida

Per and polyfluoro alkyl substances (PFAS), are a class of chemicals in wide use throughout the nation and rapidly gaining notoriety in environmental law, public health, and environmental remediation.^[1] PFAS have been used in a myriad of products since the 1940s, and uses ranging from food wrappers, cooking utensils coated with Teflon®, medical products, coatings, waterproofing and stain-resistance in carpeting and clothing, as well as in firefighting foams used by airports and firefighters throughout the nation, and in the workplace, including industries such as electronics manufacturing and oil recovery. In addition, PFAS are found in living organisms, such as humans and fish. Virtually everyone in the U.S. has been exposed and it is reported that PFAS are in the blood of more than 95% of Americans.^[2]

PFAS is a family of thousands of fluorinated compounds that are pervasive in the environment, do not breakdown, bio accumulate, and are currently nonremediable. The Centers for Disease Control (CDC) states that some PFAS compounds pose different health risks, including hormonal problems and certain cancers. The most consistent findings are increased cholesterol levels among exposed populations, as well as low birth weight, effects on the immune system, cancer, and thyroid hormone disruption.^[3]

Two PFAS have acquired particular notoriety: perfluoro octanic acid (PFOA) and perfluoro octane sulfonic acid (PFOS). PFOA is no longer manufactured as of 2015, and PFOS stopped being manufactured in 2002. PFOA-containing products, such as firefighting foam, are still being used. These two compounds, along with four other PFAS, began to be monitored in large water suppliers in 2013 by the U.S. Environmental Protection Agency (EPA), under its Unregulated Contaminant Monitor Rule (UCMR), and water samples reported their presence in drinking water.^[4] These detections and public furor triggered a series of actions culminating in the EPA issuing a health advisory level (HAL) in drinking water of 70 parts per trillion (ppt) in November 2016.^[5] Compared to a federal rule-developed and enforceable maximum contaminant level (MCL) under the Safe Drinking Water Act (SDWA), a HAL is an unenforceable, nonregulatory concentration designed to inform the public about contaminants that can cause human effects and are anticipated to occur in drinking water. However, in practice the PFAS HAL has become a de facto standard, and many water utilities and municipalities in Florida have shut down water production wells reporting concentrations above the HAL or installing expensive carbon filtration systems at the wellheads.^[6]

Among the many controversies associated with PFAS, there is significant disagreement among the scientific community relating to analytical issues. For example, currently there are no validated standard EPA methods for analyzing PFAS in surface water, non-potable ground water, wastewater, or solids. For now, in drinking water, analytical EPA Method 537.1 is used for PFAS. Methods for shorter chain compounds and solid matrices, such as soil, are being developed. Furthermore, there is currently no approved proven remedial technology for PFAS. Carbon filtration is the most common remedial option, but it is expensive and limited. Alternative remedial technologies are currently under study.

Because of their widespread use, bio-persistence, and ease of transport, these compounds can now be found almost anywhere one looks. While the health effects from low-level concentrations of PFAS chemicals are not yet fully understood, litigation and public interest continue to increase. State and federal agencies, including the EPA as well as the Florida Department of Environmental Protection (FDEP), and several other states, have taken notice and are beginning to move quickly in an effort to help minimize human exposure, despite scientific uncertainties.

Federal Legislative Landscape

A controversial provision in proposed federal legislation declaring PFAS “hazardous substances” under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), passed the U.S. House of Representatives under its PFAS Action Act of 2019 (HR 535), but the U.S. Senate did not take up companion legislation.^[7] However, on December 19, 2019, two important provisions were included in the congressional 2020 spending packages for EPA regarding PFAS. The first provision directs EPA to add several PFAS compounds to the Toxic Release Inventory and accelerates PFAS drinking water monitoring, and the second provision directs the EPA to brief the House and Senate within 60 days of legislation enactment on its progress under the EPA’s 2019 PFAS Action Plan.^[8] These were signed into law on December 20, 2019. Other stand-alone federal legislation referred to banning PFAS use in food packaging, water assistance, right-to-know, testing of military personnel, and other areas. New York University’s Law School Center for State Energy and Environmental Impact Center provides an excellent summary of additional 2019 legislation regarding these substances.^[9] While the appropriations law omitted the most controversial provisions regarding PFAS, it is anticipated that in 2020 and 2021, Congress will continue to push for action on PFAS regulations that use several existing statutes, such as CERCLA and the Clean Water Act. Without question, the implications of declaring PFAS a “hazardous substance” under CERCLA are vast and are addressed later in this article.

Federal Regulatory Landscape

It is important to note that the U.S. Federal Aviation Administration (FAA) mandated since at least 2001 that airport operators regularly train with, calibrate equipment, and test their fire-fighting equipment by discharging foam containing PFAS known as aqueous fire fighting foam (AFFF) into the ground.^[10] From a regulatory perspective, the FAA cannot certify an airport that does not meet fire-training requirements. The FAA Reauthorization Act of 2018 requires the FAA to stop mandating the use of PFAS foam by October 2021, and while the FAA is in the process of evaluating PFAS-free foam, it is on record as stating that given the physical properties of PFAS, currently there are no alternatives to AFFF containing PFAS. However, in January 2019, the FAA announced that in order to be certified, airports could use “environmentally friendly” testing systems.^[11] As of the date of this article, a total of 524 airports across the U.S. were required to use AFFF, and all can be considered suspect for PFAS contamination.^[12]

At this time, and as an emerging contaminant class, PFAS are not defined as “hazardous substances” and, therefore, are not regulated under CERCLA. However, EPA released in February 2019 its PFAS Action Plan. The 72-page document outlines steps that EPA will take to address these substances and protect public health. The main points of the plan are: EPA will develop an MCL for PFOA and PFOS, develop interim groundwater cleanup recommendations, additional monitoring of water supplies, enforcement in case of imminent exposure, and conduct additional research.^[13] On December 20, 2019, EPA also released interim recommendations for addressing groundwater contaminated with PFOA and PFOS.^[14] These recommendations provide guidance for cleanup of contaminated sites under CERCLA and Resource Conservation and Recovery Act (RCRA). This federal guidance recommends a screening level of 40 ppt to determine if PFOA/PFOS are present at a site and warrants further evaluation, and a 70 ppt remediation goal for contaminated groundwater that may be a source of drinking water. Legal circles believe that a 40 ppt will likely be the departure concentration under rulemaking to develop the federal MCL. In 2020, EPA is expected to finalize a proposed regulatory determination for PFOA and PFOS and initiate rulemaking to add other PFAS compounds to the list of mandatory reporting under the Emergency Planning and Community Right to Know Act. Additionally, it is anticipated that the EPA will implement its 2019 PFAS Action Plan by expanding testing for PFAS throughout the country.

On February 20, the EPA proposed regulatory determination for PFOA and PFOS in drinking water. A regulatory determination is the first step toward rulemaking by the EPA for drinking water regulation. This formal action followed more than 10 years of study of PFOA and PFOS by the EPA. Typically, the regulatory determination process takes several years. During this period, EPA will seek public comment on its proposed regulatory determinations for PFOA and PFOS. Public comment must be made within 60 days after EPA publishes notice in the Federal Register.^[15] The EPA’s PFAS Action Plan is the first multi-media, multi-program, national research, management, and communication plan to address PFAS. Specifically, EPA is following the national primary drinking water regulation rulemaking process under the SDWA. EPA is gathering and evaluating information to determine if regulation is appropriate for other chemicals in the PFAS family. EPA is also in the early scoping stages of risk assessments for PFOA, PFOS, and biosolids. EPA is also exploring human health and aquatic life criteria under the Clean Water Act and information about PFAS released into surface waters by industrial sources.

Florida Regulatory and Legislative Landscape

While the debate over federal regulations continued, several states, including Florida, are filling the lack of quick-action vacuum by implementing PFAS limits in drinking water and other media. While working with affected water utilities to ensure that a completed exposure pathway to PFAS was not completed, the FDEP began to focus on likely sources of PFAS, and in 2019, implemented a sampling program on 25 certified fire-training facilities.^[16] FDEP also adopted the federal HAL in groundwater of 70 ppt for the total sum of PFOA and PFOS. Preliminary results reported by the FDEP indicate that PFAS exceeding the HAL were detected in several certified fire-training academies, with at least one investigation showing that other sources of PFAS besides fire training academies may exist. FDEP also reported that it developed “provisional cleanup target levels” (CTLs) for PFOA and PFOS in soil. These cleanup target levels are not promulgated and their enforceability as CTLs has been legally questioned by the U.S. Department of Defense and others, arguing that under F.A.C. Ch. 62-780, PFAS CTLs are not promulgated and are not considered applicable or relevant and appropriate requirements (ARARs) as required by CERCLA.^[17] However, FDEP argued that it has the statutory authority to establish cleanup target levels under F.S. Chs. 373 and 403.^[18] In addition to its groundwater HAL, FDEP established CTLs for irrigation water and is developing human and ecologically based surface water screening levels.^[19] FDEP’s engagement with several stakeholders and toxicological research work on surface-water screening levels is ongoing, and these levels may become final in late 2020. As with the EPA HAL, the FDEP’s provisional CTL for groundwater has become a de facto standard in site assessments and remediation, over the strong objections of affected stakeholders. These stakeholders argue that the FDEP must adopt any CTL through the formal F.S. Ch. 120 rulemaking process. Lastly, FDEP indicated in numerous meetings that the surface-water screening levels are not enforceable and would be used to determine sources and potential remedies to reduce the impact of these substances on sensitive freshwater and estuarine ecosystems.

Compounding the issue, FDEP also reported it has sampled several dry cleaners in its Dry Cleaning Solvent Program with all dry cleaners reporting PFAS detections and half of them reporting exceedances of the 70 ppt HAL. It is unclear the effect of these substances on already closed dry cleaners, their owners, or its dry-cleaning remedial program, which is one of the largest in the nation. It is anticipated that in 2020, FDEP will continue to focus its efforts in evaluating the presence of these sources in groundwater or sensitive ecosystems by sampling sites with no available financial responsible party and by engaging other stakeholders, such as airports that may have conducted fire training in their property, seaports that have stored or discharged these substances as part of testing of fireboat equipment, waste water utilities that may have processed grey water containing PFAS and discharged into surface water bodies, and others such as private and municipally-owned landfills. Since the state is home to many military contractors and public and private parks whose facilities have tested or stored these substances as part of fire suppression systems, it is conceivable that the FDEP may engage with them in the future. Meanwhile, municipalities and counties with detections of PFAS above the HAL in their properties have been issued a response “62-780 letter” under F.A.C. Ch. 62-780.^[20] These assign legal responsibility for assessment and cleanup to owners of property where these substances were detected in excess of the HAL. In addition, these letters prescribe enforceable timeframes for a responsible party to conduct assessment and remediation. Affected stakeholders also have objected to the requirements of the 62-780 letter on legal grounds.

Considering the implications of third-party liability and liability for cleanup, these response letters have caused consternation among responsible parties and more so when there are currently no extant technologies that will remediate a PFAS source or plume to the FDEP’s CTL. Current remedial responses consist of filtering PFAS from groundwater prior to human consumption (ex-situ) or the installation of filtering technologies designed to retard the advancement of a PFAS plume (in-situ), but no chemical or biological technology is currently available in-situ that will breakdown these compounds into its elemental components. This will likely mean that Florida’s potentially responsible parties such as cities and others will be saddled with substantial long-term costs to monitor groundwater quality.

In addition to the above, several bills were introduced into the 2020 Florida Legislature seeking to address the PFAS firestorm. These bills address notification and provide protection under the Florida Brownfields laws. Legislators have also asked for study workshops to evaluate the effects of PFAS in order to consider exemptions for lawful use of PFAS containing AFFF. It is anticipated that these bills will require more than one legislative session to achieve consensus and passage, most likely in the 2021 Florida Legislature.

Lawsuits and Settlements

In the early 2000s, the PFAS firestorm started to quietly show signs that it would acquire staggering dimensions. Likely the first class-action lawsuit involving PFAS exposure was filed in 2001 in West Virginia state court.^[21] This lawsuit was settled with a class of about 80,000 people living near DuPont’s Washington Works plant.^[22] The class settlement provided for the medical monitoring and conditions for which a science panel partly funded by DuPont found a probable link between PFAS and negative health effects.^[23] Fast forward to 2016 after the science panel had concluded its work in Leach v. E.I. DuPont de Nemours and Co., Case No. 01-C-608 Wood County W. VA Circuit Court (August 31, 2001), the number of toxic tort cases has exploded. The most notable is the multi-district litigation comprised of approximately 500 cases named AFFF Products Liability Litigation, MDL No. 2873, which after a request by defendants Tyco and Chemgard and subsequent review by the Judicial Panel on Multi District Litigation, it was determined that it should be consolidated in the District of South Carolina of the U.S. District Court. Judge Richard Gergel has been assigned discovery and pretrial matters and additional tort cases are being transferred to this court.^[24] It is anticipated that several cities, utilities, airports, and other parties in Florida will join this lawsuit.

Notable settlements to date include the February 2017 settlement whereby DuPont agreed to pay residents of Ohio and West Virginia $671 million for PFOA pollution from a manufacturing plant in Parkersburg, WV, and the February 20, 2018, settlement between the State of Minnesota and 3M for $850 million. This lawsuit was settled after Minnesota’s Attorney General sued 3M for environmental damages stemming from the manufacture of PFAS compounds.^[25] Lastly, on February 24, 2020, 3M and Wolverine WorldWide, Inc., a clothing manufacturer, reached an agreement to address PFAS contamination in two of Michigan’s Townships. This agreement resolved legal claims between the two companies and pertains only to the lawsuit between them. The terms of the agreement indicate that 3M will make a fixed financial contribution of $55 million to address PFAS remediation under Wolverine’s consent decree with the State of Michigan.^[26] With potentially billions of dollars in damages, states such as Michigan and New Hampshire have also filed lawsuits and other states and plaintiffs are expected to follow Minnesota’s lead. Several municipalities have also filed suit and more litigation is anticipated.

Legal Implications of PFAS in Florida

There are several complex legal implications for many PFAS stakeholders in Florida that merit discussion. One of the most important and potentially legally complex would be the listing of PFAS as “hazardous substances” under CERCLA §102, as mentioned above. This would allow the EPA to place PFAS-contaminated property on the National Priorities List (NPL) and allow it to pursue cost recovery actions when there is a solvent responsible party. In some cases, and due to the widespread use and application of PFAS, it is conceivable that Florida cities, airports, seaports, landfills, and even small dry cleaner operators could find themselves subject to the retroactive, joint and several, as well as strict provisions of Superfund liability. Given that the average lifespan of a Superfund site from listing to cleanup can be measured in decades, these potential responsible parties would be looking at enormous monetary costs spread out over long periods of time. A 1999 study revealed that the average cost to remediate a Superfund site was $25.7 million in 1999.^[27] Since these costs have likely climbed even higher, the potential negative effects on Florida’s public institutions’ budgets can’t be underestimated.

Conclusion

PFAS have recently been found in Florida’s drinking water, surface water, and soils, with many stakeholders, such as airports, cities, counties, and utilities, beginning to analyze the impacts of these substances to their organizations, employees, the public, and the environment. In 2020, both the FDEP and the EPA will take an even more active role in determining the extent of these substances in our environment, and stakeholders in the state of Florida will not be immune to these efforts. In the majority of these cases, and given the fast-paced and multi-faceted evolution of this issue, stakeholders must consider all the aspects of their decisions, from implementing site assessments to joining existing lawsuits and evaluating filing insurance claims or being potential defendants for any PFAS-related risk. The years 2020 and 2021 are likely to bring significant additional legal, regulatory, legislative, and litigation developments. The PFAS firestorm has arrived in Florida and is likely to scorch for a considerable amount of time.

This column is submitted on behalf of the Environmental and Land Use Law Section, Jon H. Maurer, chair, and Susan Martin, editor.