The final rule for listing specific per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) became final on April 19, 2024.  While very significant, there are several other consequential PFAS developments.

Per- and Polyfluoroalkyl Substances – PFAS

Safe Drinking Water Act

As anticipated, the United States Environmental Protection Agency (EPA) has established Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs) for specific PFAS (see chart below).

Initially, this rule will largely affect public water systems that will be required to comply with the new Safe Drinking Water Act (SDWA) MCLs.  Specifically, the new MCLs will require the following:

• Public water systems must monitor for these PFAS and have three years to complete initial monitoring by 2027. They must also conduct ongoing compliance monitoring.
• If monitoring shows that they exceed the MCLs, the public water systems will be required to implement solutions to address the exceedances by 2029.
• Beginning in 2029, if a public water system exceeds one of the MCLs, they must notify the public of the exceedance.

Source: USEPA Final PFAS National Primary Drinking Water Regulation April 10, 2024

As mentioned, while these MCLs apply to drinking water and initially apply to public water systems, MCLs are invariably used by default to establish cleanup criteria in soil and groundwater.  This will have a domino effect and will likely be a trigger to establish many new Superfund sites and potentially reopen previously closed Superfund sites.  The costs above and beyond that incurred by public water systems will be significant.

Two Proposed PFAS Rules under RCRA

On February 8, 2024, the EPA issued two proposed PFAS rules under the Resource Conservation and Recovery Act (RCRA).

PFAS as Hazardous Constituents

The EPA issued a proposed rule, “Listing of Specific PFAS as Hazardous Constituents.”  The proposed changes to RCRA add nine PFAS compounds to the list of hazardous constituents under 40 CFR Part 261 Appendix VII.  The nine compounds include the following:

1. Perfluorooctanoic acid.
2. Perfluorooctanesulfonic acid
3. Perfluorobutanesulfonic acid.
4. Hexafluoropropylene oxide-dimer acid.
5. Perfluorononanoic acid.
6. Perfluorohexanesulfonic acid.
7. Perfluorodecanoic acid.
8. Perfluorohexanoic acid.
9. Perfluorobutanoic acid.

To be listed as a hazardous constituent under RCRA, it must be shown that the substance is toxic, carcinogenic, mutagenic, or teratogenic.  This has not been demonstrated for the nine PFAS compounds.

However, in a blog by Harris Beach they write, “…the EPA observes that the classification does not require a finalized toxicity assessment or exhaustive search and evaluation of all published studies.  If the rule is adopted, these PFAS will be identified in assessments of (Treatment, Storage, and Disposal) TSD facilities, which may be required to undertake corrective action related to their treatment, storage, disposal, or release.”

PFAS – RCRA Corrective Action for Releases from Solid Waste Management Units.

The second proposed amendment to RCRA would broaden the definition of a hazardous waste subject to corrective action at TSD facilities.

The proposed rule is titled, “Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units.”

In a legal blog by Liskow, they write, “The proposed revision would clarify EPA’s authority to address, through corrective action for solid waste management units, releases of all substances at a TSD facility that meet the statutory definition of hazardous waste in RCRA § 1004(5), not merely hazardous wastes and hazardous constituents listed or identified in the regulations.  That is, the broadened regulatory definition of hazardous waste would include a solid waste, or combination of solid wastes, which because of certain characteristics, may ‘cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness’; or ‘pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.’  EPA noted that this proposed rule would not directly address PFAS, but “it would facilitate the use of RCRA corrective action authority to address emerging contaminants such as PFAS, as well as other non-regulatory hazardous waste,” at RCRA-permitted TSD facilities.”

Considering the newly-established MCLs for certain PFAS (4 ppt), one would think that it would be relatively easy for certain PFAS to become entangled into these proposed rules.  Additionally, how much additional “waste” will be generated that will need to “find a home?”

Updated Document: Disposal/Destruction of PFAS

Finally, with the ramping up of regulations to address PFAS under RCRA and CERCLA, the EPA is providing guidance on PFAS disposal.

The 152-page guidance document is titled, “Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances—Version 2 (2024).”

The guidance document, issued April 8, 2024, summarizes scientific information on the current understanding of PFAS and focuses on three currently used D&D technologies:

1) Underground injection,

2) Landfills, and

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

EPA will accept comments for 180 days from the date of the Federal Register notice.

Interestingly, the PFAS disposal options being “proposed” by the USEPA are three of the commonly contested methods by the public and non-governmental organizations (NGOs).

Growing Concern and Dissent over PFAS Regulatory Approach

We have previously expressed concern that the regulations are getting ahead of the science concerning PFAS.  PFAS is a global environmental concern and yet – the actionable levels across the globe vary widely.  For example, while the EPA has now established an MCL of 4 ppt for PFOA, the World Health Organization proposed that the provisional guidance for PFOA is 100 ppt.

In an ideal world, and perhaps in the mind of the general public, environmental protection is simply a matter of science – unencumbered by politics.  Realistically, regulations have a strong political bent – regardless of who is controlling the narrative in Washington D.C.

PFAS, perhaps like no other contaminant, has become very political and we are not alone in our concern about the current approach to address PFAS.  The quotes below from former EPA staff are not intended to be an endorsement – but rather to provide some perspective that is not being widely shared.

Former EPA General Counsel

Donald Elliott who previously served as General Counsel at the EPA recently wrote an article taking the current administration to task, in pretty strong terms, for their approach to regulating PFAS under the SDWA. Here are some quotes from the article in (firewall protected) American Spectator on February 18, 2024 “Biden’s Political Payoff…With Your Money.”

“…the EPA’s proposed rule for PFAS in drinking water may be the most expensive rule in the EPA’s history.  The direct cost to water utilities to comply is estimated by the EPA at ‘only’ about $1 billion per year, but the American Water Works Association (AWWA) says it would actually cost $3.8 billion per year.  How much this will cost the average American family varies from a high of about $10,000 extra per year to a low of about $100 per year depending upon the size of their water supply system…”

“This one-two gut punch is likely to push several major U.S. chemical companies essential to our national defense into bankruptcy.  Think I am exaggerating?  One company, 3M, has already reached a settlement for $10 billion (yes, with a B) to settle only part of its PFAS liability.  Time magazine says that was ‘just the tip of the iceberg’ with plenty more to come.  PFAS lawsuits will be a bonanza for plaintiffs’ lawyers, who typically take 20–33 percent of recoveries as their contingent fees.”

“The extremely low levels of risk from PFAS in drinking water and consumer products — if indeed there is any real risk at all — could not be the basis for successful personal injury lawsuits against the PFAS manufacturers and companies using PFAS in their products because plaintiffs would ordinarily have to prove in court that their alleged injuries are more probable than not to result from exposure to PFAS.”

“This multi-billion-dollar wealth transfer might be defensible if eliminating low levels of PFAS from drinking water really would save thousands of lives, but not a single study cited by the EPA actually shows any harm to human health from exposure to low levels of PFAS, including exposures to PFAS many times higher than the EPA’s proposed 4 part per trillion limit.  Rather, the EPA relies on a few studies that show no toxic effects but only “subclinical effects,” which are measurable changes in bodily functions within the range otherwise considered normal.  (I am not a scientist, so I have checked with three Ph.D. toxicologists who all confirmed that my understanding is correct.)”

Former EPA Assistant Administrator

Susan Bodine, Earth and Water Law, who served as the Assistant Administrator for Enforcement and Compliance Assurance at the Environmental Protection Agency took the agency to task as well.  The quotes below are from a LinkedIn post.

“EPA is talking out of both sides of its mouth when it comes to PFAS disposal costs.”

“On page 5-11 of the economic analysis for the final PFAS MCL rule signed on April 8, 2024, EPA downplays the concerns raised by stakeholders about the effect of a CERCLA hazardous substance listing on the costs of disposing of treatment residuals that contain PFAS stating: ‘Designation of PFOA and PFOS as CERCLA hazardous substances would not require waste (e.g., biosolids, treatment residuals, etc.) to be treated in any particular fashion, nor disposed of at any specific particular type of landfill.’”

“But on pages 44 and 46 of the economic analysis for its proposal to list PFOA and PFOS as CERCLA hazardous substances and pages 130-31 of the economic analysis for its proposal to list nine PFAS chemicals as RCRA hazardous constituents EPA claims that improved waste management and induced cleanups are benefits of those rules.”

“Further, in EPA’s revised PFAS destruction and disposal guidance, released for comment on April 8, 2024, EPA recommends three expensive PFAS waste management options, including disposal in a permitted hazardous waste landfill, all of which have limited capacity.”

“EPA cannot have it both ways.  It cannot downplay the effects on PFAS disposal created by its other regulatory actions when evaluating costs in its MCL rulemaking while touting those same effects as benefits in its CERCLA and RCRA rulemakings.  EPA must consider the cumulative impacts of all of its PFAS regulatory actions and guidance documents.”

Developing a PFAS Strategy

The avalanche of PFAS regulations along with numerous other environmental regulations (CWA-FRP Rule, RMP Rule, SEC Rule and Climate Litigation, and PFAS-TSCA reporting requirement) will certainly have an economic impact.  The question remains, will these additional regulations result in better outcomes from a human health and ecological perspective?

If you are looking for assistance in developing a strategy to address PFAS, we can help.  We routinely speak and write on PFAS and are involved in PFAS working groups.  Contact either Jeffrey Bolin, M.S., CHMM (Ext. 125) or Matthew Schroeder, M.S., P.E. (Ext 114) at 248-932-0228.

Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.

Alan Hahn drafted this blog.  Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management.  He has worked in environmental management for 45 years.  He has written hundreds of blogs and articles.  His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

Jeffrey Bolin, M.S., reviewed the blog.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, frequent speaker, and expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas.  See Jeff’s Bio.  

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