Washington State to Regulate PFAS Under State Superfund

Washington State recently announced that PFAS are “hazardous substances” regulated under the State’s environmental cleanup laws. The Department of Ecology (“Ecology”) announced its decision online stating that, because “PFAS compounds all have multiple carbon-fluorine bonds,” such “forever chemicals” are already within the State’s existing definition of hazardous substances.[i] Ecology went on to say that releases of PFAS that may threaten human health or the environment in any media must be reported to State regulators, followed by site assessment and, potentially, cleanup. The agency did not define what specific levels would trigger reporting.[ii] That judgment appears to be left to the entity doing the reporting. In doing so, Washington became perhaps the first state in the country to define PFAS in a way that could construe the entire class of PFAS compounds as hazardous substances in a regulatory context.

Per- and polyfluoroalkyl substances, known collectively as “PFAS” are a group of thousands of chemicals which do not easily break down into the environment. PFAS are found in firefighting foams, food packaging, wire insulation, cleaners, textiles, apparel, carpet, leather, paper, and paints. The chemicals have been associated with health issues including thyroid hormone disruption, increased obesity, cancer, and negative effects on the reproductive system, among other things.[iii]

Public sector entities and private sector businesses potentially impacted by PFAS include drinking water suppliers; wastewater and solid waste management facilities; manufacturers who have stored or use firefighting foam; oil and gas facilities; mining; automotive, aviation, and aerospace industries; medical products manufacturers and waste; the pulp, paper, and packaging industry; semiconductor and wire manufacturing; textiles; businesses using or creating industrial surfactants, resins, molds, and plastics; and airports.

Implications of Ecology’s Announcement for Washington Stakeholders

In its online announcements, Ecology “formally announc[ed] that PFAS compounds are hazardous substances under [MTCA].”[iv] The agency specifically concluded that: “if PFAS compounds are released to the environment and may pose a threat to human health or the environment, they must be reported to Ecology within 90 days of discovery.”[v] The State has not formalized any cleanup standards for PFAS, although it is moving in that direction in coordination with other State agencies. With this “announcement,” consultants and businesses are now required to report releases of PFAS into the environment to Ecology. While remediation will likely not be required until Ecology finalizes cleanup standards, stakeholders may see requirements for PFAS sampling added to sampling protocols at MTCA cleanup sites.

Next Steps for PFAS Regulation in Washington

More clarity on further regulation of PFAS in Washington could come as State agencies continue their rulemaking. The Washington Department of Health (“DOH”) has approved  State Action Levels (“SALs”) for five individual PFAS compounds found in drinking water supplies.[vi] These limits are expected to be set as final rules by DOH in late 2021 or early 2022 and would apply to Group A Public Water Supplies, triggering reporting and other notification requirements to affected customers.[vii] SALs would not, however, require any cleanup actions, but would serve as a bridge in the process of determining final cleanup standards via Maximum Contaminant Levels (“MCLs”).[viii]

Ecology, which retains authority over the cleanup of hazardous substances in the State, has stated its intent to engage in its own rulemaking to set MCLs after DOH implements its SALs for drinking water.[ix] Unlike SALs, MCLs would trigger response requirements if the contaminant is found in levels above those limits.[x] The PFAS MCLs Ecology ultimately settles on will thus have profound implications for future remedial actions in Washington, as well as influencing regulators elsewhere. Ecology has not yet provided a timeline for its rulemaking, but the process appears likely to commence shortly after DOH finalizes its SALs. And we may see more action at both the state and federal level in this area, as several states have instituted enforceable cleanup standards of individual PFAS compounds in drinking water, soil, groundwater, and surface water,[xi] and EPA has stated its intent to finalize drinking water standards at the federal level by Fall 2023.[xii]

For more information on PFAS, please contact Jeff Kray, Jessica Ferrell, or Jack Ross.  The authors wish to thank Sara Cloon, Martha Geyer, Brad Marten, and Lawson Fite, all of whom contributed to this article.