Environmental Litigation Attorneys

PFAS: A New Frontier for Waste Management and Landfill Leachate

Per- and Polyfluoroalkyl substances (PFAS) are found in products ranging from non-stick cookware to firefighting foam, and contaminate sites and drinking water systems across the country. PFAS are known to remain in the human body for a prolonged period of time, causing a variety of diseases. Over the past few years, several states, the United States EPA, municipal water providers, and plaintiffs’ attorneys have begun to take steps to address PFAS. Therefore, concerns involving landfill leachate have increased, demanding waste management facility operators be aware of potential future monitoring and regulatory requirements.

PFAS Regulations

Due to PFAS contamination across the country, the EPA has issued a non-binding health advisory level of 70 parts per trillion (ppt) for cumulative lifetime exposure to PFOA and PFOS. EPA also announced on February 14, 2019, a comprehensive nationwide PFAS action plan that will establish a maximum contaminant level (MCL) for PFAS under the Safe Drinking Water Act (SDWA), which will be fully enforceable and will apply to all public water systems across the country. The second major regulatory development proposed by the EPA action plan is to list PFOA and PFAS as hazardous substances pursuant to Section 102 of CERCLA. This allows the EPA to exercise its authority and seek cost recovery from polluters for a release of PFAS. Additionally, listing PFOA and PFAS as CERCLA hazardous substances will increase potentially responsible parties, such as municipalities that owned or operated closed landfills that accepted wastes containing these contaminants. Of course, once these chemicals are listed as hazardous substances, municipal landfills will be able to seek cost recovery or contribution for their response costs.

In 2016, New York became the first state to regulate PFOA as a hazardous substance, setting an advisory level of 50 parts per billion (ppb). New York is also in the process of developing a MCL for PFAS, which would apply to groundwater. Specifically, on December 18, 2018, the New York Drinking Water Quality Council (DWQC) recommended adoption of the nation’s most stringent drinking water standards related to emerging contaminants, which includes PFAS. The DWQC proposed that the New York State Department of Health (DOH) adopt a MCL of 10 ppt for PFOA and PFOS. In July 2019, the DOH filed a Notice of Proposed Rulemaking to promulgate these recommendations into law, which may go into effect this year. The proposed limits are significant reductions from the EPA guidance limit of 70 ppt.

The NYSDEC has initiated their own PFAS sampling at operating landfills to determine the presence of PFAS. Beginning in 2018, NYSDEC began collecting information regarding PFAS contamination at state Superfund and Brownfield Cleanup Program (BCP) sites across New York State. More recently, the NYSDEC announced that it had drastically expanded the sampling requirements for PFAS. Starting in February 2019, new state Superfund and BCP sites must sample all environmental media, including soil and groundwater for PFAS compounds. New York State was also recently awarded $890,851 in federal funding to support a health study on the effects of toxic PFAS contamination by the Centers for Disease Control and Prevention (CDC).

Future Issues

The fate and transport of PFAS in different types of landfills can be complex. In the absence of regulations on PFAS, generators of PFAS waste are questioning what the most appropriate methods of treatment or disposal for solid and liquid waste are. While the fate and release of PFAS in landfills have been studied to some extent, limited research exists on current containment practices. This lack of scientific certainty inevitably delays regulatory action at the federal and state levels.

It remains unclear as to how New York State intends on regulating and addressing PFAS-related contamination in landfill leachate. State regulators

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