New Pennsylvania PFOS and PFOA Cleanup Standards Reach Final Major Regulatory Hurdle

The process to revise regulations in Pennsylvania is often long and involved, and the Pennsylvania Department of Environmental Protection’s (PADEP) revision to its Act 2 Chapter 250 regulations to incorporate cleanup standards for three per- and polyfluoroalkyl substances (PFAS) has proved to be no exception.  PADEP first published its regulatory proposal in the Pennsylvania Bulletin on February 15, 2020.   Finally, earlier this summer on June 15, 2021, the Pennsylvania Environmental Quality Board (EQB) voted to adopt PADEP’s final regulations.  Now, on September 23, 2021, the Pennsylvania Independent Regulatory Review Commission (IRRC) will hold a public meeting for its consideration and vote on the PADEP’s  proposed update to its Act 2 regulations.

Should IRRC vote to approve the update to Act 2 regulations, IRRC will issue an order indicating its approval, and PADEP will then submit the regulatory package to the Pennsylvania Office of Attorney General (OAG) for legal review.  If approved by OAG, the final approved regulation will be published in the Pennsylvania Bulletin.  The regulation becomes effective, and compliance is required with the new regulation, on the date it is published unless another date is specified by PADEP.   PADEP indicated in its Regulatory Analysis Form that these Act 2 regulations will become effective upon publication in the Pennsylvania Bulletin.

This regulatory update includes the following new statewide health standards for soil and groundwater medium-specific concentrations (MSC) for PFOS, PFOA, and PFBS:

Under the groundwater MSCs, PADEP notes in Appendix A that the PFOA and PFOS listed values are for individual or total combined purposes.  The new PFOS and PFOA groundwater standards are based on EPA’s Drinking Water Health Advisory Level of 70 parts per trillion.  As explained by PADEP in its Response to Comments document (see Comment 23), under Act 2 an EPA HAL (or maximum contaminant level (MCL)) becomes an Act 2 MSC immediately upon publication by EPA.  Given that, while PADEP is now formally adopting these standards into Act 2 regulations, they have been applicable as groundwater cleanup standards since EPA published the PFOA/PFOS HAL in May 2016.  Note that PADEP is also in the early stages of a rulemaking process to set drinking water MCLs for PFOA and PFOS, as we posted here.

Finally, as we discussed in a previous post, PADEP’s update to the Act 2 regulations does not designate any of these three PFAS as “hazardous substances” under the Pennsylvania Hazardous Sites Cleanup Act (HSCA). That will require official designation by either PADEP or the U.S. Environmental Protection Agency under HSCA or Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

PADEP’s proposed update to the Act 2 regulations can be obtained at the following links:

• PADEP PowerPoint Presentation to EQB (June 15, 2021)
• Executive Summary
• Regulatory Preamble
• Regulatory Annex (Appendix A, Tables 1-7)
• Comment and Response Document

Regulatory Analysis Form.