By Jeffrey Karp, Senior Counsel and Edward Mahaffey, Law Clerk

Co-authored by Jeffrey Karp and Edward Mahaffey

Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are found in firefighting foam used by the military since the 1970’s for training exercises and to extinguish liquid and gas fires. These compounds are part of a larger class of toxic chlorinated chemicals called per- and polyfluoroalkyl substances (PFAS). Similarly, airports and municipal fire departments have used the aqueous film forming foam (AFFF) for decades to extinguish fires caused by flammable liquids.[1]

Firefighting foams are divided mainly into two classes. Class A foams are used to fight wildfires and structural fires. Class B foams are used to extinguish fires caused by flammable liquids. While not all Class B fire extinguishing agents contain PFAS, all AFFF does, and AFFF has special characteristics that make it difficult to find adequate replacements. When mixed with water, AFFF produces an aqueous spreading film that extinguishes burning hydrocarbon fuel and prevents reignition by cutting off oxygen from the fuel source.[2]

Co-authored by Edward Mahaffey and Jeffrey Karp

The COVID-19 pandemic has disrupted many business and governmental activities, and environmental compliance is no exception. In recognition of the potentially negative impacts of the pandemic on stakeholders’ ability to meet environmental compliance and remediation obligations, the U.S. EPA has recently issued both (i) a Policy concerning the discretionary enforcement of civil violations of laws, regulations and permits, and (ii) a Guidance concerning the timing of field work for remedial investigations and cleanup activities under CERCLA as well as corrective measures under RCRA.

By Jeffrey M. Karp, Edward Mahaffey and Graham Ansell

Despite extensive negotiation, insufficient bipartisan support was garnered to obtain inclusion of robust PFAS provisions in Congressional year-end spending legislation. Initially, there was some expectation that U.S. EPA might be directed in the National Defense Authorization Act (NDAA) to establish maximum contaminant levels (MCLs) for per- and polyfluoroalkyl substances (PFAS) in drinking water, and/or to designate PFAS as hazardous substances under CERCLA, but those proposals were not included in the legislation. In the absence of a Congressional mandate or U.S. EPA regulatory action establishing enforceable clean-up standards, states concerned about the potential negative health effects of exposure to PFAS compounds have taken matters into their own hands. As discussed, to fill the federal government void, states have set MCLs for certain PFAS compounds in drinking water, required testing of water systems and publication of results, and established remediation requirements for certain PFAS compounds in groundwater and surface water.

By Jeffrey M. Karp and Edward Mahaffey

This posting provides an update on PFAS developments involving federal legislative and regulatory activities.

Congress

On November 6, 2019, a panel of experts at a congressional briefing sponsored by the Endocrine Society and the NIH’s National Institute of Environmental Health Sciences warned that PFAS may contribute to obesity, osteoporosis, and thyroid dysfunction, while acknowledging that more study is needed of possible links.[1] The briefing reflected a continuing congressional interest in potential PFAS health impacts, as seen in the 13 PFAS-related bills approved by the US House of Representatives’ Subcommittee on Environment and Climate Change,[2] as well as the inclusion of funding for PFAS-related activities on military bases in House[3] and Senate[4] appropriation bills.

As of November 18, 2019, no further action has been taken on any of these bills.  However, at the request of members of Congress the Defense Department’s Inspector General agreed to examine the military’s use of PFAS in materials such as firefighting foam,[5] and to complete the investigation by January 2020.[6]

By  Jeffrey Karp and Maxwell Unterhalter

Since our last article discussing the way in which the Federal Energy Regulatory Commission ("FERC" or "the Commission") considers greenhouse gas (GHG) emissions and climate impacts in the pipeline certification process, the conflict has not abated. Presently, the Commission has just four members; a fifth member has not been appointed by the President since the death of Commissioner McIntyre on January 2, 2019.[1] With no nominee to replace the late Commissioner McIntyre, the remaining two Democratic and two Republican commissioners have stalemated over whether FERC is adequately fulfilling its National Environmental Policy Act (“NEPA”) responsibilities in evaluating certification applications for natural gas pipelines.[2] The lack of consensus among the four commissioners has slowed the certification of proposed pipeline projects, leading to cancellation of at least one application.[3]

By Jeffrey Karp, Maxwell Unterhalter, and James Wilhelm

Recently, we have addressed the evolving regulatory landscape for per- and poly-fluoroalkyl substances (PFAS), as the federal and state governments grapple with finding the best approach to handle PFAS releases from manufacturing facilities, fire and crash training areas, and industrial and municipal waste disposal sites into soil, groundwater, and drinking water systems. A growing awareness of PFAS persistence and the possible negative health effects at low levels in the environment also has resulted in an increasing number of lawsuits against manufacturers and distributors of PFAS and other potentially liable parties. This article discusses how scientific studies on PFAS toxicity and potential endangerment to human health and the environment have influenced such litigation.

By: Jeffrey Karp and Maxwell Unterhalter

Nearly two years following hurricanes Irma and Maria, challenges remain as Puerto Rico seeks to develop a cleaner and more resilient power grid. In November 2018, we discussed the evolving renewable energy situation in Puerto Rico as proposals for 100% renewable generation appeared stalled in its legislature. Half a year later, Puerto Rico has passed a new law that calls for implementing aggressive renewable energy goals.

Massachusetts Proposes New PFAS Regulations as States Tackle Contamination

By: Jeffrey Karp, Victor Baltera, Aaron Staudinger, and Maxwell Unterhalter

As in previous postings, we discuss recent state regulatory initiatives aimed at addressing groundwater and drinking water contamination by per- and polyfluoroalkyl substances ("PFAS"). PFAS are a group of synthetic chemicals that have been used widely in consumer and industrial products since the 1940s. Major applications have included coatings for paper and cardboard packaging products, carpets, textiles with water and oil repellency, non-stick surfaces, and firefighting foams. Due to their chemical structure, PFAS stay in the environment for a long time and do not degrade easily. PFAS have been detected in air, surface water, groundwater, drinking water, and soil.[1] They even have been found in grocery store items, such as meat, fish, dairy, and prepared chocolate-cake.[2] The widespread use and persistence of PFAS in the environment, together with growing evidence that low-level exposure may lead to adverse health effects, has increased concerns about safe levels of human exposure to PFAS.[3] In response, many more state and, to a lesser extent, federal initiatives have been undertaken to regulate PFAS. As discussed below, recently the Massachusetts Department of Environmental Protection (the "MassDEP") has proposed to regulate PFAS within the framework of the Commonwealth’s Massachusetts Contingency Plan.