On April 19, 2024, the US Environmental Protection Agency (EPA) published a rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), along with their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This amendment to Title 40 of the Code of Federal Regulations will become effective 60 days after publication in the Federal Register.

Background

PFOA, PFOS, their salts, and structural isomers are considered hazardous substances under CERCLA due to their prolonged accumulation and persistence in the human body. Studies on both laboratory animals and human populations have revealed a correlation between exposure to these substances and adverse health effects including cancer, immune system disruption, cardiovascular issues, liver damage, and harm to developing fetuses. Failure to address these contaminants will lead to continued migration, increased exposure risks and potential cleanup expenses.

CERCLA aims to identify and prioritize sites that pose unreasonable risks to human health, ensure the prompt cleanup of contaminated areas and hold responsible parties accountable for significant pollution. This approach aligns with CERCLA's core objectives of cleaning up contaminated sites and enforcing the "Polluter Pays" principle, which enables EPA to require responsible parties to cover the costs for cleanup.

Reporting Requirements

The direct effects of the rule require:

• All releases of PFOA and PFOS surpassing the one-pound Reportable Quantity (RQ) within a 24-hour period must be reported to the National Response Center (NRC). A subsequent written report should be submitted to the State Emergency Response Commission (SERC) or Tribal Emergency Response Commission (TERC), as well as the Local Emergency Planning Committee (LEPC) or Tribal emergency planning committee (TEPC), at the earliest opportunity after the release.
• Federal entities that transfer or sell property must notify storage, release, or disposal of PFOA or PFOS. They must also include a covenant in the deed, committing to clean up any resulting contamination as per CERCLA 120(h).
• The U.S. Department of Transportation must list and regulate these substances as hazardous materials under the Hazardous Materials Transportation Act.

• Vessel or facility owners/operators must give reasonable notice of any release of these substances to potentially affected parties by publication in local newspapers about.

This rule may impact various entities including, but not limited to:

1. Manufacturers (including importers) of PFOA and/or PFOS, and articles containing these substances.
2. Processors of PFOA and/or PFOS.
3. Manufacturers of products containing PFOA and/or PFOS.
4. Downstream users of PFOA and PFOS.
5. Downstream users of products containing PFOA and/or PFOS.
6. Waste management facilities.
7. Wastewater treatment facilities.

The pre-publication of final rule can be accessed here. 

On April 9, 2024, the U.S. Environmental Protection Agency (EPA) issued an updated "Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) and Materials Containing PFAS" as part of its PFAS Strategic Roadmap.

The revised guidance incorporates the latest scientific advancements to help PFAS waste managers determine the most suitable methods for destruction, disposal, or storage. It advises decision makers to prioritize technologies with minimal potential for environmental release to protect individuals and communities from PFAS exposure. Notably, the interim guidance does not impose specific requirements for the destruction or disposal of PFAS materials.

Updates from the Guidance document:

The updated interim guidance continues to focus on three primary D&D (destruction and disposal) technologies:

1) Underground injection (UIC)

2) Landfills

3) Thermal treatment under certain conditions, which includes incineration.

It incorporates public feedback on EPA’s 2020 Guidance, integrates years of governmental and private sector technological advances, and outlines new EPA testing methods and improved screening tools to identify and prioritize protections for communities residing near D&D facilities, particularly those already burdened by pollution. By addressing key data gaps and uncertainties, ongoing research aims to improve the efficient destruction of PFAS while minimizing their release into the environment.

Key Findings in 2024:

The new EPA guidance emphasizes the importance of selecting destruction and disposal (D&D) technologies that minimize the potential for PFAS release to the environment. The interim guidance outlines several preferred options in different categories:

• Interim storage with controls, though not a definitive D&D solution, could be considered temporarily. Its suitability depends on the type of PFAS materials involved. For instance, EPA recommends interim storage for containerized or high PFAS-content materials. However, materials that are continuously produced or have low PFAS content and high volume may not be suitable for storage. Effective controls during interim storage can help manage PFAS migration.

• UIC-Permitted Class I non-hazardous industrial or hazardous waste injection wells: Designed to isolate liquid wastes deep underground and protect drinking water sources, these wells are a viable option for managing PFAS-containing fluids, although availability may vary.

• Permitted Hazardous Waste Landfills: Hazardous waste landfills, especially when PFAS concentrations in the waste are high, are recommended for landfill disposal because they protect against leachate emissions that help control PFAS releases to the environment.

• Thermal Treatment–Permitted hazardous waste combustors that operate under certain conditions: Recent research suggests that certain thermal treatment units are more effective at destroying PFAS and minimizing releases or exposures. However, uncertainties remain regarding potential harmful byproducts or air emissions of PFAS, particularly for units operating at lower temperatures.

EPA has introduced a new analytical test method, OTM-50, to gather additional data and address inquiries, particularly regarding incomplete combustion products. The revised interim guidance advises thermal treatment facilities to use various test methods before accepting significant volumes of PFAS-containing materials.

Further Action:

EPA welcomes feedback on the interim guidance for 180 days following its publication in the Federal Register. Comments can be submitted to the public docket at Regulations.gov, Docket ID: EPA-HQ-OLEM-2020-0527. EPA will then assess public comments, advances in research, and new scientific findings to update the interim guidance within three years, as required by the National Defense Authorization Act (NDAA).