The issue of per- and polyfluoroalkyl substances (PFAS) continues to suck all the oxygen out of the room. Like no other environmental contaminant of concern, PFAS are seemingly leaving no business or person untouched, not even the “green energy” market.
PFOA and PFOS – CERCLA Hazardous Substances
One of the more, if not the most significant of the final PFAS rules, is the designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as CERCLA (Comprehensive Environmental Response Compensation and Liability Act) hazardous substances.
Effective July 8, 2024, PFOA and PFOS (and their salts or structural isomers) are CERCLA hazardous substances. This is a significant milestone in the regulation of PFAS compounds.
Setting aside for the moment the concerns about cleanup liability, being named as a potential responsible party, and third-party lawsuits, what are some of the immediate impacts?
Releases Must be Reported
Under CERCLA, the Reportable Quantity or RQ for PFOA or PFOS is one pound. Accordingly, releases of either PFOA or PFOS of one pound or more within a 24-hour period will require reporting to the National Response Center. Third parties that may be affected must also be notified of a release. Additionally, Local and State (or Tribal) Emergency Response Centers must be notified.
For businesses that still use Aqueous Film Forming Foam (AFFF) – an event using AFFF could trigger the reporting.
The United States Department of Defense (DoD) has historically used AFFF. The DoD is transitioning to Fluorine Free Foams or FFF but they will require a “one-year waiver to extend the deadline to October 1, 2025” to complete the transition.
Transactions, Regan Statement, and Petition Filed
Phase I Environmental Site Assessments must now consider PFOA and PFOS to meet the requirements of All Appropriate Inquiries under CERCLA. For sellers and buyers of commercial/industrial properties, the evaluation of PFAS will require (more) legal/technical strategic considerations. Buyers have to consider the potential presence of PFAS and sellers may be reluctant to have quantitative testing for PFAS on their property.
Looking ahead it appears that the EPA will be designating additional PFAS as CERCLA hazardous substances. According to a letter from the House Committee on Energy and Commerce EPA Chief, Michael Regan said, additional PFAS will be designated as CERCLA hazardous substances.
On July 12, 2024, the US Chamber of Commerce et al filed a petition in the United States Court of Appeals for the District of Columbia. The petition says in part that they are submitting, “…this Non-binding Statement of Issues with respect to their Petition for Review of the U.S. Environmental Protection Agency’s (‘EPA’s’) final rule entitled ‘Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances…’”
A study by Duke University found bis FASIs, a PFAS, near Lithium-Ion battery manufacturing plants (Photo by JUICE on Unsplash).
Clean Energy Sector a Source of “New” PFAS
The most recent PFAS to come under scrutiny may be particularly problematic for the lithium-ion battery business. The PFAS now in question are bis-perfluoroalkyl sulfonimides (bis-FASIs). The study was conducted by Duke University, Pratt School of Engineering.
The study suggests that bis-FASIs have the same problematic characteristics (persistence and ecotoxicity) of two well-studied PFAS – PFOA and GenX.
The researchers collected samples of air, water, snow, and sediment near manufacturing plants in Minnesota, Kentucky, Belgium, and France. According to the report, concentrations of bis-FASIs were found in the parts per billion level. Current US regulatory limits for PFAS are in the parts per trillion level. The research also found bis-FASI in landfill leachate.
According to a factsheet on “PFAS in Batteries,” the German Company, ZVEI states, “PFAS binder materials provide a unique combination of properties that are essential for the manufacturing process as well as the performance, durability, and safety of the batteries.”
PFAS Essential for Hydrogen Market
In previous blogs, we have discussed concerns that have been expressed by alternative fuel suppliers regarding PFAS bans. A publication that serves the global hydrogen market states, “The proposed restriction of around 10,000 per- and polyfluoroalkyl substances (PFASs) in Europe would have ‘very serious consequences’ for the whole clean hydrogen and sustainability industry.”
Final Thoughts
There is growing concern that the very restrictive approach to regulating PFAS will lead to bankruptcies (see Not Enough Gold in Fort Knox to Cover PFAS Liability). Regulations are being finalized, but the science in the minds of many, is not settled.
One of the voices that has been critical of the EPA’s approach to regulating PFAS is environmental toxicologist, Susan Goldhaber with the American Council on Science and Health. Earlier this year, she wrote, “Not only have scientists not demonstrated a cause-and-effect relationship between PFAS and any health conditions, but they also have not determined a safe level in blood. Many governments and expert groups have estimated a safe dose for PFOA; however, these values differ by more than 100,000 fold.”
The regulation and restriction of PFAS as it is being approached currently will be consequential to the global economy. How consequential remains to be seen.
For more information about PFAS, see our PFAS Resource Page. If you need assistance with an environmental issue, including litigation support, contact Jeffrey Bolin, M.S., CHMM, at 248-932-0228, Ext. 125.
Dragun Corporation does not use artificial intelligence to draft 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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