States and legal experts say EPA regulations on PFAS chemicals are crucial to protect public health and compel the cleanup of pollution. That's particularly the case where the Department of Defense is the polluter, attorneys said.
Even as states across the country work to address toxic per- and polyfluorinated substances (PFAS) by creating their own drinking water protections, legal experts and regulators say the U.S. Environmental Protection Agency plays a crucial role. The dynamic is particularly important where the military is the polluter, since the EPA also holds federal authority.
“Failure to address PFAS at a national level will really put public health at risk,” said Lisa Daniels, director of the Pennsylvania Department of Environmental Protection’s Bureau of Safe Drinking Water, at a public meeting last year. “EPA must take a leadership role."
In February, EPA Administrator Andrew Wheeler visited Philadelphia to announce a PFAS Action Plan, which included an “intention” to set a federal drinking water standard for PFOS and PFOA. Wheeler also revealed a proposal to declare the chemicals hazardous substances under the federal Superfund law, and touted a scheduled release of groundwater cleanup recommendations.
But the plan received a lukewarm reception from several states, which felt it lacked hard commitments or deadlines. Immediately following the Feb. 14 announcement, Pennsylvania became the latest state to say it would set its own standards, with a spokesman declaring the state "cannot wait" for the EPA.
Several attorneys said listing PFAS as hazardous substances under Superfund, the nation’s primary law governing areas of major chemical contamination, would help most in pursuing cleanup actions.
“We have sued under (Superfund). We believe it’s a hazardous substance, but you don’t see it on the list,” attorney Alan Knauf said of his efforts in representing Newburgh, New York, in a lawsuit against the military over clean drinking water. “If it were put on the federal list, that would tremendously help us.”
Heather Babb, a Department of Defense spokeswoman, said the department also supports federal regulation.
"DOD supports EPA establishing regulatory standards and a consistent cleanup approach for PFOS/PFOA based on (Superfund)," Babb wrote in an email. “We want a standard risk-based cleanup approach that is based on science and applies to everyone."
Some attorneys say they think the EPA already has authorities it could use more aggressively.
Tim Bergére, an environmental attorney with Philadelphia's Montgomery McCracken Walker & Rhoads, pointed out that the EPA previously used an “imminent and substantial” endangerment clause under the Safe Drinking Water Act to compel the military to act on PFAS at the Naval Air Warfare Center Warminster and Horsham Air Guard Station. The EPA has issued eight such orders for PFAS nationwide.
Bergére added that many states have laws that are more stringent than federal standards and aren’t limited by sovereign immunity, such as a Clean Streams Law in Pennsylvania that he said could be used to force the cleanup of PFAS around the bases in Bucks and Montgomery counties.
"The Navy’s sovereign immunity … does not extend to discharges once they move off the site,” Bergére said.
Other attorneys said states can generally use powers delegated by the EPA to force actions by polluters, including through the issuance of water discharge permits under the federal Clean Water Act and the oversight of hazardous waste removal.
“Since the feds are not doing anything, the states have the authority and, we think, frankly, the obligation to step into the vacuum,” said Erik Olson, a senior director at the Natural Resources Defense Council.
But recent Department of Defense actions to challenge state regulations underscore the pitfalls of states taking the lead. In New Mexico, regulators sought to force the Air Force to clean up PFAS using a federally delegated hazardous waste authority. The Air Force responded by arguing in court that the state incorrectly applied the law.
Adam Sowatzka, an attorney with the Atlanta-based firm King & Spalding and a former EPA lawyer, said federal regulations are needed to ensure a strong legal case. Without such standards, even the EPA has to go to great lengths to make an effective argument while using emergency powers, he said.
“If you look at what EPA has to do, and all the administrative hurdles, and the case it needs to develop to bring an imminent and substantial endangerment (order), it’s a very, very difficult task,” Sowatzka said.
A new state battleground could be opening soon, as the New Jersey Department of Environmental Protection is on track to institute drinking water standards of 13 parts per trillion (ppt) for PFOS and 14 ppt for PFOA within a year. Those levels would be the strictest in the nation, and a fraction of the EPA's 70-ppt advisory for drinking water.
Under New Jersey law, the levels also would become groundwater standards, and spokesman Larry Hajna said his department believes the military would have to comply while cleaning up sites like Joint Base McGuire-Dix-Lakehurst.
However, there are signs of potential issues. In 2018, the U.S. Air Force commented on a DEP standard for a chemical cousin, perfluorononanoic acid, or PFNA, questioning its legitimacy.
“Standards based on poor scientific methodologies are often the subject of litigation because they are arbitrary,” the Air Force wrote.
There is no evidence the Air Force acted on the warning, but PFOS and PFOA present much greater liabilities than PFNA, which was not a major ingredient in firefighting foams. New Jersey also recently implemented interim groundwater standards of 10 ppt for PFOS and PFOA, and a spokesperson said the state expects the Air Force to comply. An Air Force spokesperson said the agency is still reviewing the standard.
The crawl of cleanup
Environmental attorneys said there also is room for legal jousting as the military decides to what extent, and how quickly, it will clean PFAS from the environment. That's because while the EPA typically has broad authority to drive cleanup at contaminated sites, federal law puts the Department of Defense in the driver's seat at military bases.
“Fundamentally, EPA and DOD are part of the ‘unitary executive,' meaning EPA can’t take DOD to court and so doesn’t have the same leverage as it would at a private site,” said Taly Jolish, a recently retired Superfund attorney for the EPA in California.
In several cases where states have created their own environmental standards, the military has said it will consider the limits as "ARARs." Short for Applicable or Relevant and Appropriate Requirements, the acronym refers to a process under the federal Superfund law that determines to what level a polluter must clean up a chemical in water or soil.
Several attorneys agreed that the EPA or state regulators typically have authority in selecting an ARAR level for an unregulated chemical at a contaminated site. While some experts said regulators still have to sign off on such decisions at military bases, those with experience in the area said disagreements get messy.
“It becomes basically a political knife fight between DOD and EPA,” Olson said.
Jolish also said such decisions are “very political determinations.”
Tensions between the EPA and military apparently already exist. On March 13, U.S. Sen. Tom Carper, D-Delaware, authored a letter in which he cited sources saying the military and other federal agencies were pressuring the EPA to relax draft groundwater cleanup recommendations from 70 ppt to 400 ppt. The numbers have not yet been released publicly, and Carper urged the EPA to resist the alleged pressure.
"Such levels would, among other consequences, subject fewer sites that were contaminated through the military’s use of PFOA/PFOS from having to be remediated in the first place," Carper wrote.
Further complicating matters is that the EPA has even less authority to control how long it takes the military to make cleanup decisions, experts said. The issue is playing out at bases across the country, where the military has spent years studying the extent of the PFAS contamination but has done far less to actually remove the chemicals. Officials have commonly cited the need to do more studies before they reach the point of selecting an ARAR.
"I suspect the cause of delay at the federal level is the concern that the Department of Defense is going to have to spend hundreds of millions, and maybe even billions of dollars, responding to these PFOS sites,” said David Engel, an environmental attorney litigating PFAS in New York.
Maureen Sullivan, a deputy assistant secretary for the environment at the Department of Defense, suggested in an early March congressional hearing that the department is holding off on containing PFAS releases until it further studies the issue. She also gave a “back of the envelope” estimate of needing $2 billion for PFAS cleanup.
“Right now, we’re trying to determine the extent of the presence in the groundwater around our bases, how far it is, where it’s flowing, so we can design the right system to contain it,” Sullivan said.
Babb, the DOD spokeswoman, said the department "has proactively addressed PFOS and PFOA and follows the federal cleanup law.”
“DOD's priority is to quickly address PFOS and PFOA in drinking water from DOD activities,” she added.
The military also is pushing about $60 million into research on methods to better detect, understand and filter PFAS chemicals, with many studies not due until 2021. Jennifer Field, an Oregon State University PFAS expert whose work has been funded by the military, said there are about 50 ongoing projects, many of them looking for novel and cost-effective ways of destroying PFAS.
“There are definitely some higher-energy processes that look promising, but the problem is practical aspects have to be worked out,” Field said. "I haven’t heard of the stunning breakthrough that’s going to revolutionize (cleanup). Not yet.”
But Engel thinks the military can already act more robustly with current technologies, citing its $700 billion annual budget.
“Let’s say it’s a $10 billion (liability). My response is, ‘So what?’ ” Engel said. “If the purpose of the Department of Defense is to defend the United States and the people living in it, you would think that a good thing for them to do would be to defend the people who are drinking water contaminated by these facilities.”