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On September 27, 2019, Ohio Governor Mike DeWine took the state’s most prominent action to date in response to the growing national health concerns related to per- and polyfluoroalkyl substances (PFAS) in drinking water. In a&nbsp;<a href="https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-media/analysis-of-pfas-in-drinking-water" target="_blank" rel="noopener">press release</a>, the governor ordered Ohio EPA and the Ohio Health Department to develop an action plan by December 1, 2019 to sample public and private water systems that are near known PFAS contaminated sites.

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In Ohio and throughout the country, PFAS sites are commonly associated with historical manufacturing facilities and public and private firefighting training facilities that used aqueous film-forming foam (AFFF) containing&nbsp;PFAS. PFAS are often referred to as “forever chemicals” because of their strong chemical stability in nature. Ohio’s announced approach is similar to that of many other states such as California, which announced earlier in 2019 its “Phased Investigation Approach” for PFAS, starting with airports, landfills and drinking water sources within one mile of known historical PFAS dischargers.

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Ohio has many known or suspected PFAS-contaminated sites including several Air Force bases that used AFFF in actual or training fire-fighting activities (e.g., Wright-Patterson Air Force Base, Toledo Air National Guard Base) as well as many former industrial sites. The Ohio attorney general has also filed suit against several companies associated with PFAS manufacturing and usage, and on September 30, 2019, a proposed class action in Ohio, Hardwick v. 3M, et al., survived a motion to dismiss. In addition to ordering the creation of an Ohio PFAS action plan,DeWine also ordered continuous monitoring of emerging areas of national research into potential PFAS substitutes, soil remediation and technologies to treat PFAS.

In a previous Thompson Hine <a href="https://www.thompsonhine.com/publications/epa-unveils-pfas-chemical-action-plan-drinking-water-and-environmental-remediation-impacts" target="_blank" rel="noreferrer noopener">Environmental Update</a>, we described the U.S. EPA’s PFAS action plan, issued on February 14, 2019. EPA’s PFAS action plan discussed a series of potential future federal actions, such as establishing federal drinking water maximum contaminant levels (MCLs), designating PFAS compounds as CERCLA “hazardous substances,” establishing remediation cleanup levels, and performing additional toxicity assessments for various PFAS compounds. To date, EPA has set a non-binding Health Advisory Level of 70 parts per trillion (PPT) for the combination of two common PFAS compounds, PFOS and PFOA, and Congress continues to hold hearings and propose bills to establish binding MCLs, among other actions.

Not satisfied with the pace of federal action to address PFAS, over two dozen states have already taken significant steps of their own, including setting their own MCLs and remediation standards for certain PFAS compounds. For example, New Jersey, a state with many identified PFAS-impacted sites, set an MCL of 13 ppt for one PFAS, perfluorononanoic acid (PFNA), in 2018 and has proposed MCLs of 13 ppt for PFOS and 14 ppt for PFOA. Michigan, another state with dozens of known PFAS sites, has established a cleanup level of 70 ppt and is considering much lower MCLs. Several states, including Maine, Connecticut and Michigan, have created formal task forces to evaluate PFAS sites and propose potential regulatory and legislative actions.

PFAS has become a critical area of interest over the past several years, resulting in billions of dollars in lawsuit settlements and additional ongoing litigation, extensive environmental investigation and remediation, new developments in testing and remediation technologies, a focus in due diligence and state and federal enforcement actions. While not the first state to take action, Ohio’s PFAS action plan will continue the national momentum toward PFAS regulation and site investigation/remediation actions. Thompson Hine will continue to closely monitor Ohio’s progress with its PFAS action plan and associated developments and provide guidance to our clients to address PFAS-related issues.

Joel D. Eagle 216.566.5938 <a href="mailto:Joel.Eagle@ThompsonHine.com">Joel.Eagle@ThompsonHine.com</a>

or any member of the <a href="https://www.thompsonhine.com/services/environmental">Environmental</a> group.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgement of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhinestaging.contentpilot.net/wp-content/uploads/2022/04/Environmental_Update_-_Governor_DeWine_Orders_State_Agencies_to_Develop_PFAS_Action_Plan_-_October_20190.pdf

Governor DeWine Orders State Agencies to Develop PFAS Action Plan for Drinking Water Sampling in Ohio

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