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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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On December 2, 2019, the Ohio Environmental Protection Agency (Ohio EPA) and the Ohio Department of Health (ODH) jointly issued the <a href="https://epa.ohio.gov/Portals/28/documents/pfas/PFASActionPlan.pdf" target="_blank" rel="noopener">Ohio Per- and Polyfluoroalkyl Substances (PFAS) Action Plan for Drinking Water</a> (Ohio PFAS Action Plan) following Governor Mike DeWine’s September 27, 2019 order to both agencies to prepare a statewide action plan by December 1. The Ohio PFAS Action Plan presents a framework for short- and medium-term activities consisting of six stated objectives related to sampling of public water systems and potential response actions if certain PFAS-family compounds are detected above action levels. The state of Ohio will implement these six objectives, summarized below, as its initial formal action to address growing public health concerns over PFAS that the U.S. EPA and dozens of states are now facing.

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Objective 1: Sample public water systems to determine if PFAS is present in drinking water.

The Ohio PFAS Action Plan sets the end of 2020 as the goal to complete sampling of 1,500 public water systems, which are systems that serve at least 15 service connections used by year-round residents or regularly serve at least 25 year-round residents. Public water systems are typically provided by cities and some mobile home parks, nursing homes, schools, hospitals and businesses. According to the Ohio PFAS Action Plan, these 1,500 public water systems serve around 90% of the state’s population. As the prevalence of PFAS sampling has increased, identifying appropriate laboratories and sampling equipment has emerged as a challenge throughout the country. The Ohio PFAS Action Plan states that it will contract with consultants and labs, which will perform the evaluations based on a future Quality Assurance Project Plan and U.S. EPA-approved methods for drinking water testing. Ohio EPA’s Division of Environmental Services may also conduct some sampling. The resulting data will be posted to Ohio EPA’s new <a href="https://epa.ohio.gov/pfas" target="_blank" rel="noopener">PFAS website</a>.

Objective 2: Assist private water system owners with guidelines and resources to identify and respond to potential PFAS contamination.

ODH is responsible for regulating private water systems, which provide water for human consumption if the system has fewer than 15 service connections and does not regularly serve an average of at least 25 individuals at least 60 days out of the year. Private water systems are typically associated with private homes and small churches and businesses. The Ohio PFAS Action Plan calls for ODH to evaluate the data collected from public water systems (Objective 1) and coordinate as needed with local health districts and private water system owners if response actions are needed. Possible response actions include providing guidance on testing and treatment options for private well systems.

Objective 3: Establish drinking water action levels to help with responses to possible PFAS contamination.

There are no drinking water maximum contaminant levels (MCLs) established for PFAS compounds, but <a href="https://www.epa.gov/sites/production/files/2019-02/documents/pfas_action_plan_021319_508compliant_1.pdf" target="_blank" rel="noopener">U.S. EPA’s PFAS Action Plan</a>, released in February 2019, and subsequent agency and legislative action indicates that the process for setting MCLs for certain PFAS compounds, PFOS and PFOA, is moving forward. Ohio EPA is using U.S. EPA’s non-binding Health Advisory Level (HAL) of 70 parts per trillion (ppt) for PFOS and PFOA, and it will use action levels for four other PFAS compounds based on U.S. EPA methodologies and toxicity data. Those levels, provided in the Ohio PFAS Action Plan, are: GenX compound (&gt;700 ppt), PFBS (&gt;140,000 ppt), PFHxS (&gt;140 ppt) and PFNA (&gt;21 ppt). The Ohio PFAS Action Plan indicates that Ohio EPA and ODH will generate response protocols for public and private water systems if those action levels are exceeded.

It is important to note that “detections” under the Ohio PFAS Action Plan are based on labs’ lowest achievable method reporting limits, which Ohio EPA reports is, on average, around 5 ppt for each of the six PFAS compounds (except GenX, which is around 25 ppt). As Ohio and many other states continue to evaluate toxicity and potential health risks and consider decreasing action levels and establishing conservative MCLs, sampling and lab testing methodologies and lower reporting limits will become increasingly relevant and possibly controversial.

Objective 4: Help Ohio communities identify resources to assist their public water systems in implementing preventative and long-term measures to reduce PFAS-related risks.

The Ohio PFAS Action Plan states that Ohio EPA will provide information on available loans and technical assistance to assist communities with treatment and other infrastructure improvements. Ohio EPA may also conduct workshops on PFAS-related issues. ODH will coordinate with Ohio EPA and other stakeholders to help private water system owners with PFAS sampling, analysis and installation of treatment systems, if needed.

Objective 5: Provide PFAS educational information to the public.

Ohio EPA will use its new PFAS website to provide information to the public, especially as it and ODH begin to implement the Ohio PFAS Action Plan. On the website, the public should expect to see sampling results, interpretation of the results, risk and health-based information, ways to reduce possible exposure risks and additional information such as national PFAS updates. This is an important step, because until recently Ohio EPA did not have a public website for PFAS-related information and activities.

Objective 6: Adapt the action plan as needed, based on scientific and regulatory developments at the national level.

Although PFAS has been the subject of regulatory action, certain toxicity evaluations and litigation for many years, the pace of these developments has accelerated greatly over the past few years, particularly in 2019 with the issuance of U.S. EPA’s PFAS Action Plan. The Ohio PFAS Action Plan acknowledges that these developments will continue and that the state’s PFAS plan must accordingly be nimble based on those changes. Likely areas of expected change in the short term include new federal PFAS regulation, additional toxicity evaluations for various PFAS compounds, identification of chemical substitutes for PFAS, identification of other possible exposure pathways (e.g., air), and development of new or improved water treatment or remediation technologies.

The Ohio PFAS Action Plan is an important next step in the state’s response to the national PFAS debate. If Ohio meets or comes close to meeting its goal, by the end of 2020 the state and the public should have significantly more information about possible PFAS contamination and exposure risks throughout the state. Ohio’s implementation of its action plan focusing on drinking water systems, along with federal action and initiatives in states across the country, will invariably lead to increased scrutiny of contaminated or potentially contaminated sites.&nbsp; Some states (e.g., California and New Jersey) recently began requiring responsible parties to investigate remediation sites for PFAS contamination in soil and groundwater. Thompson Hine will continue to closely monitor the implementation of the Ohio PFAS Action Plan and provide guidance to our clients on addressing PFAS-related issues.

For more information, please see our previous Environmental Updates: <a href="https://www.thompsonhine.com/publications/governor-dewine-orders-state-agencies-to-develop-pfas-action-plan-for-drinking-water-sampling-in-ohio-1" target="_blank" rel="noopener">“Governor DeWine Orders State Agencies to Develop PFAS Action Plan for Drinking Water Sampling in Ohio”</a> and <a href="https://www.thompsonhine.com/publications/epa-unveils-pfas-chemical-action-plan-drinking-water-and-environmental-remediation-impacts" target="_blank" rel="noopener">“EPA Unveils PFAS Chemical Action Plan: Drinking Water and Environmental Remediation Impacts”</a> and contact:

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" target="_blank" rel="noopener">Environmental</a> group.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment 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.thompsonhine.com/wp-content/uploads/2022/04/Environmental_Update_-_Ohio_EPA_and_Department_of_Health_Issue_PFAS_Action_Plan_for_2020_Implementation.pdf

Ohio EPA and Department of Health Issue PFAS Action Plan for 2020 Implementation

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