United States: Washington State Designates PFAS 'Forever Chemicals' as Hazardous Substances

The Washington Department of Ecology has taken the formal step of designating the family of manufactured chemicals called per- and polyfluoroalkyl compounds as hazardous substances. Referred to collectively as “PFAS” and more colloquially as “forever chemicals” because of their persistence in the environment, these compounds have been the subject of increasing regulatory scrutiny. The hazardous substance designation now sets in motion a process to develop cleanup levels for five PFAS compounds and for which the Washington Department of Health also is developing proposed rules to set State Action Levels for drinking water.

PFAS compounds are ubiquitous, commonly found in thousands of products from stain-resistant carpet, to water-repellent clothing, to non-stick cookware, and in a variety of food packaging items. A significant source of PFAS has been fire-fighting foams used at military bases, airports, petroleum and chemical plants, and by local fire departments. The state legislature passed a ban on the manufacture and sale of PFAS-containing foams in 2019, but the military, some airports, petroleum refineries, and certain chemical plants are exempt. PFAS compounds also are highly mobile and are found in soil, groundwater, sediments, and surface water. Because of the persistence and widespread presence of PFAS compounds, concerns have been raised about harmful and serious health effects. The federal Agency for Toxic Substances and Disease Registry has said, “Most people in the United States have one or more specific PFAS in their blood[.]”

The big question now will be what cleanup level Ecology sets for PFAS compounds, which are measured in the parts per trillion (ppt). A part per trillion is often described as equivalent to one drop of water in an Olympic-sized swimming pool. The federal government has not yet set any standards for PFAS, but issued a Health Advisory Level of 70 ppt for two compounds in drinking water — perfluorooctanoate (PFOA) and perfluorooctanoic sulfonate (PFOS). Although the federal Health Advisory Levels are not enforceable standards, they can be used as a preliminary remediation goal for federal cleanups. In late 2020, Michigan adopted groundwater cleanup standards for five PFAS compounds, ranging from 6 ppt to 400,000 ppt. Several other states, including Massachusetts, New Hampshire, New Jersey, New York, and Vermont, also have various drinking water concentration levels (ranging from 6 ppt to 140,000 ppt depending on the compound). Other states, such as California, Connecticut, Minnesota, Ohio, and North Carolina, have issued recommended concentration levels as guidance, but without requiring notification or other action if the limit is exceeded.

With the hazardous substance classification for PFAS, site owners will have to report releases of the compounds to Ecology within 90 days of discovery and conduct an assessment of whether further action may be needed. This could be an expensive process since the very nature of what PFAS compounds are intended to do makes remediation difficult.