The Challenge of PFAS Sampling

On 17 April 2024 the United States Environmental Protection Agency (USEPA) finalized a ruling making official the classification of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This long-anticipated ruling adds a tool to the USEPA’s arsenal by allowing the agency to set limits for reportable releases of the compounds, and most importantly sets a path for responsible parties to be financially liable for investigation and cleanup costs related to PFAS releases, i.e., the “Polluter Pays” principle.

Per- and polyfluoroalkyl substances (PFAS) are a class of thousands of fluorinated surfactants that have been commercially available since the 1940s. They have gotten the name “forever chemicals” because unlike many conventional pollutants, they do not biodegrade over time. In fact, they do the opposite, bioaccumulate and persist, yikes. The compounds became incredibly popular because they were great at just about everything. They were used in fire-fighting because they reduce surface tension and can sit on top of a fire smothering it, which is different from water, which sits at the bottom after being sprayed. It was used in frying pans because it prevented food from sticking it to pans. Did you spill something on the carpet or couch? Don’t worry about that, PFAS was in those too because it prevented those stains from permanently ruining the furniture. Do you sweat a lot? No big deal, it’s in sweat wicking clothing too! Food containers, yep those too! PFAS even managed to make its way into a Prime Hydration beverage Grape Sports Drink, which was touted as health and full of antioxidants and vitamins (lawsuit pending).

The use of these compounds was so widespread that PFOA and PFOS were detected in the blood of nearly all participants in a US Centers for Disease Control and Prevention (CDC) National Health and Nutrition Examination Survey (NHANES) from 2017-2018.1 There are more than 12,000 PFAS compounds, but this ruling only applies to the two of those compounds. The decision to designate PFOS and PFOA as hazardous substances is supported by a broad range of studies indicating that human exposure to the compounds may lead to developmental effects to fetuses during pregnancy or to infants, they are possible carcinogens, they may cause an increase in cholesterol levels, decreased immune response to come vaccines, and adverse impacts to the liver.

This ruling moves the compounds from their previous designation as emerging contaminants squarely into a designation as “hazardous substances”. As a hazardous substance it now must be evaluated as part of the environmental due diligence process to convey “innocent landowner” liability protection.  

There are several challenges when sampling for PFAS in the environment. It requires a detailed sampling plan to account for products that we may use in our everyday lives such as cosmetics, perfume, deodorant/antiperspirant, lotions, insect repellants, sunscreen, recycled paper products like paper towels and notebook paper, water resistant clothing (synthetic fabrics), latex gloves. Additionally, the clothing shouldn’t have been recently washed with fabric softeners or dry-cleaned.  Contact from the aforementioned materials could inadvertently be mixed in with sampled media impacting the results.

Another challenge is the laboratory analysis cost, which can be up to ten times the amount of a conventional analysis for petroleum compounds. This is because the analysis must be extremely precise due to the very low levels at which the compounds are regulated. The USEPA has set enforceable Maximum Contaminant Levels (in drinking water) of 4 parts per trillion for PFOA and PFOS. Most contaminants are regulated at the parts per billion level, so the advisory standards indicate the compounds are hazardous to human health at extremely low levels. Only very expensive equipment and well-qualified lab technicians are certified to perform the analysis.  Additionally, the laboratory turn-around-time is about 3-4 x the amount of time of conventional analysis.

Not to mention the finger-pointing if a detection were to occur. The USEPA only recently started creating systems to specifically track PFAS releases, e.g., PFAS Toxics Release Inventory (TRI) and the data does not include historical users that may have had releases. Furthermore, a recent study that assessed the occurrence of PFAS in rainfall in South Florida detected levels of PFOA and PFOS in rainwater above USEPA health advisory levels.2

I advise my clients to focus on the risk and certain factors increase the risk of a property being scrutinized for PFAS. For example, being in a wellfield protection zone, i.e., a location used by the municipality to extract groundwater that will be provided to the community for drinking water purposes is a heightened risk. Understanding high risk facilities (e.g., solid waste landfills, airports, fire training academies, lands used for biosolids application) and hydrogeology of the area can determine the risk that those nearby operations may pose, which can help quantify risks at a particular site. The USEPA has indicated its intention to identify parties that have significantly contributed to PFAS contamination such as federal facilities and industrial manufacturers.

Depending on the size of the facility and its history, the local governing agency, e.g., the Florida Department of Environmental Protection (FDEP) or a county agency may take the lead in directing cleanup. The FDEP’s provision groundwater cleanup target level is significantly higher than the USEPA’s health advisory level at 70 ppt for PFOS and PFOA in groundwater compounds and that discrepancy can make a significant difference in determining what the State of Florida perceives as “contaminated”.

It is also important to understand the background concentration. This is a baseline level of what may be in the environment due to the ubiquity of the compounds. A regulatory agency (in most instances lol) wouldn’t reasonably expect a landowner to cleanup beyond what is naturally found in the area.

The awareness and technology being used to address our current PFAS challenges are continually evolving. I believe in time as more resources are allocated to addressing this issue, the problem will become less expensive to investigate, remediate, and manage. Let’s watch this space.

References

1.      Agency for Toxic Substances and Disease Registry, 2024. https://www.atsdr.cdc.gov/pfas/health-effects/us-population.html

2.      Guerra de Navarro, Maria, Reyna, Yosmely, and Quinete, Natalia. “It’s raining PFAS in South Florida: Occurrence of per- and polyfluoroalkyl substances (PFAS) in wet atmospheric deposition from Miami-Dade, South Florida.” ScienceDirect, 4 September 2024. https://www.sciencedirect.com/science/article/abs/pii/S1309104224002678