At the end of 2023, the United States Environmental Protection Agency (EPA) issued a News Release describing how the agency moved “further and faster than ever before in 2023.” They listed several bullets to highlight their accomplishments. The ninth bullet was first mention of per- and polyfluoroalkyl substances (PFAS). However, based on recent developments – PFAS are likely to be higher on the list of concerns for the regulated community in 2024.
Required Reporting: Decade Retrospective Use of PFAS
As we discussed last fall, one of the more immediate and substantive rules surrounding PFAS is the new retrospective reporting requirement under the Toxic Substance Control Act (TSCA) Section 8(a)(7). This rule requires regulated entities to submit a report relating to the manufacture and import of PFAS chemicals for each year for which PFAS or PFAS containing articles were manufactured between January 1, 2011 and December 31, 2022. There are no exemptions for small businesses or de mimimis usage.
EPA Explains Requirements
On January 25, 2024, the EPA held a webinar to discuss the reporting requirements. NOTE: If you did not attend the webinar, we do have a copy of the slides and can forward to you if you are interested (contact ahahn@dragun.com).
One of the big questions regarding this rather significant reporting undertaking is which PFAS are required to be reported. Unfortunately, the EPA’s definition of regulated PFAS under this requirement is not straight forward.
As reported by Morgan Lewis in a recent blog, “Guidance on which PFAS qualify under the reporting rule is particularly important because the rule uses a ‘structural definition’ of PFAS rather than a discrete chemical list. In other words, it is up to regulated entities to determine whether any chemical substance or mixture used in a manufactured or imported article meets the rule’s technical definition and must be reported to EPA.”
You may need to brush up on your chemistry before you begin evaluating your activity over the eleven year reporting period. Here is how the EPA defines the regulated chemicals.
PFAS are likely to be higher on the list of concerns for the regulated community in 2024 (Image courtesy of South Carolina Department of Health and Environmental Control).
Complicated Definition of Covered PFAS
For purposes of the reporting rule, a PFAS chemical is any chemical substance or mixture containing a chemical substance that structurally contains at least one of the following three sub-structures:
- R-(CF2)-CF(R′)R″, where both the CF2 and CF moieties are saturated carbons.
- R-CF2OCF2-R′, where R and R′ can either be F, O, or saturated carbons.
- CF3C(CF3)R′R″, where R′ and R″ can either be F or saturated carbons.
Also see, TSCA 8(a)(7) PFAS Chemicals.
The deadline for reporting under this new rule is May 8, 2025, or November 10, 2025, depending on certain conditions.
Finally, as stated in the Morgan Lewis blog if you are affected by this reporting rule you, “…would be well advised to proceed with caution and seek the input of experts as to the identification of covered PFAS chemicals, particularly if there is any ambiguity as to whether a particular PFAS chemical not on the list meets the structural definition.”
EPA Releases Sampling and Analysis of Volatile Fluorinated Compounds in Air
Recently, the EPA released the draft Other Test Methods (OTM) 50 for sampling and analysis of volatile fluorinated compounds from stationary sources. According to a blog by Duane Morris, “Although not yet enforceable, the release of draft test method OTM-50 by the U.S. Environmental Protection Agency (EPA) marks another step toward the regulation of per- and polyfluoroalkyl substances (PFAS) in air emissions, as it will facilitate the gathering of data and refinement of test methods necessary to develop air emissions standards.”
The “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024,” they state one of their key actions is to address PFAS air emissions. Specifically, the Office of Air and Radiation will, “Build the technical foundation to address PFAS air emissions to identify sources, develop and finalize monitoring approaches for stack emissions and ambient air, develop information on cost-effective mitigation technologies, and increase understanding of the fate and transport of PFAS air emissions—to inform potential regulatory and non-regulatory mitigation options.”
You can see the draft OTM 50 here.
Two RCRA/PFAS Notices
On February 8, 2024, EPA proposed changes to the Resource Conservation and Recovery Act (RCRA) regulations. There are two separate Federal Register Notices.
Definition of a Hazardous Waste
In one notice, the EPA is proposing a modification to the definition of hazardous waste as it applies to addressing/remediating permitted hazardous waste facilities.
According to the EHS Daily Advisor, “The proposed rule would provide clear regulatory authority to fully implement the EPA’s statutory authority to require corrective action to address releases not only of substances identified as hazardous waste in the regulations but also of any substance that meets the statutory definition of hazardous waste.” The proposed rule specifically mentions the 2021 petition by the Governor of New Mexico to list PFAS as a hazardous waste under RCRA.
Comments on the proposed rule, “Definition of Hazardous Waste Applicable to Corrective Action for Releases From Solid Waste Management Units,” are open until March 11, 2024.
Proposed Additions to Appendix VIII
The other notice is a proposal to add nine PFAS, their salts, and their structural isomers, to its list of hazardous constituents in Title 40 of the Code of Federal Regulations Part 261 Appendix VIII. The nine PFAS that have been proposed for addition include:
- Perfluorooctanoic acid.
- Perfluorooctanesulfonic acid
- Perfluorobutanesulfonic acid.
- Hexafluoropropylene oxide-dimer acid.
- Perfluorononanoic acid.
- Perfluorohexanesulfonic acid.
- Perfluorodecanoic acid.
- Perfluorohexanoic acid.
- Perfluorobutanoic acid
Comments on the proposed rule, “Listing of Specific PFAS as Hazardous Constituents” are open until April 8, 2024.
While many may have anticipated that the election year could quell the environmental regulatory activity for a short time, based on these developments, that does not appear to be the case.
If you have questions about PFAS reporting, assessment, remediation, etc.…, contact Jeffrey Bolin, M.S. at 248-932-0228 Ext. 125.
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.
This blog was reviewed by Mark Resch. Mark has an undergraduate degree in the geological sciences and is a senior environmental scientist at Dragun Corporation. He brings over 30 years of environmental consulting experience in vapor intrusion, groundwater investigation, site assessment, and environmental construction project management. See Mark’s Bio.
Follow Dragun Corporation on LinkedIn, X, or Facebook.
Sign up for our monthly environmental newsletter.
Principled Foundation | Thoughtful Advice | Smart Solutions
Established in 1988