General Publications February 8, 2021

“EPA Offers Few Answers in PFAS Disposal Guidance,” Law360, February 8, 2021.

Extracted from Law360

Per- and polyfluoroalkyl substances, or PFAS, are found in a broad range of consumer and industrial goods, and are referred to as "forever chemicals" because they do not naturally break down, and are difficult to destroy. PFAS disposal therefore presents substantial challenges.

On Dec. 18, 2020, the U.S. Environmental Protection Agency released its interim guidance on the destruction and disposal of PFAS, as directed by the National Defense Authorization Act for fiscal year 2020, and as part of the PFAS Action Plan the EPA released in February 2019. The interim guidance is not binding, and does not set policy. Instead, it provides options for the destruction or disposal of PFAS substances.

The guidance acknowledges uncertainties and data gaps regarding PFAS, which the EPA states it will endeavor to fill in over the next three years, as it reviews and considers revising the guidance. But for now, the guidance raises more questions than it answers about management and disposal of PFAS.

In accordance with the 2020 NDAA, the interim guidance is limited to proposed technologies to destroy or dispose of six categories of PFAS or PFAS-containing materials:

  • Aqueous film-forming foam;
  • Soil and biosolids;
  • Textiles, other than consumer goods, treated with PFAS;
  • Waste from water treatment, including spent filters, membranes, resins and granular carbon;
  • Landfill leachate containing PFAS; and
  • Solid, liquid or gas waste streams from facilities manufacturing or using PFAS.

The interim guidance is not intended to address destruction and disposal of PFAS-containing consumer products, such as nonstick cookware and water-resistant clothing.

In the guidance, the EPA identifies three destruction and disposal technologies that may be effective for PFAS, and are commercially available: thermal treatment, landfilling and underground injection. The agency surveys the pros and cons of each technology, including the types of PFAS and PFAS-containing materials that could be handled; possible design and operating parameters; potentially relevant testing and monitoring methods; potential for migration of PFAS into the environment; costs; uncertainties and unknowns.

The guidance also states that interim storage, for an estimated period of two to five years, is another potential choice if immediate destruction or disposal is not imperative, because it would allow research to reduce uncertainties with the other technologies. The agency declines to adopt or recommend any technology, and posits only that the guidance "may enable a manager of PFAS or PFAS-containing materials to make informed decisions in the evaluation of existing destruction and disposal options."

Thus, the guidance provides little comfort for public or private entities tasked with managing PFAS, with no preferred method for their disposal or destruction, and lingering uncertainties and unknowns associated with all potentially feasible options.

Against this backdrop, PFAS have been subject to emerging state and federal regulation and litigation, which is certain to increase under the administration of President Joe Biden. During the campaign, Biden promised aggressive action on PFAS as a key part of his environmental agenda. The Biden campaign asserted that up to 110 million Americans' drinking water could be contaminated with PFAS, with the potential to cause various health issues including cancer, and described prior PFAS-related efforts as "empty promises with no follow-through."

Among other steps, Biden promised to have the EPA designate PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA — also known as the Superfund law — and to set enforceable PFAS limits in the Safe Drinking Water Act. While neither proposal is new,[1] an aggressive posture from Biden, Democratic congressional majorities and a like-minded EPA administrator suggest both could be implemented in the near term — potentially this year. Each could have significant consequences.

If PFAS are hazardous substances under CERCLA, the EPA would then be in position to force parties to clean up PFAS — or pay the EPA to do so — which would in turn lead to CERCLA cost recovery or contribution suits to allocate cleanup costs, implicating numerous parties that may have manufactured or used PFAS or PFAS-containing substances across the country over the last eight decades. This would have particularly significant implications for the U.S. Department of Defense, which has used aqueous film-forming foam made with PFAS for firefighting at hundreds of military installations in the U.S.

And new PFAS limits in the Safe Drinking Water Act would burden drinking water providers with the likelihood of increased litigation against those alleged to have contributed PFAS to drinking water supply sources. It would also bring increased regulatory and permitting scrutiny for entities that may discharge PFAS or PFAS-containing substances. Increased PFAS action at the federal level is likely to increase such action at the state level too.

With the EPA's acknowledgment of uncertainty regarding best practices for disposal or destruction of PFAS in the interim guidance, and the likelihood of substantially increased PFAS scrutiny from federal and state regulators in the near term, entities that manufacture or use PFAS or PFAS-containing substances have little concrete guidance to minimize or avoid the mounting potential for PFAS-related exposure.

To the extent possible, interim storage may be the best option while research and understanding of technologies to destroy or dispose of PFAS grow. Otherwise, those charged with management of PFAS substances must carefully review the interim guidance and other sources of information, and select the option that appears most favorable based on the specific circumstances of the PFAS or PFAS-containing materials they must address.

The EPA is accepting public comment on the interim guidance until Feb. 22.

[1] For example, several bills have been proposed in Congress requiring federal agencies to establish maximum contaminant levels for PFAS under the SDWA, and to designate certain PFAS as hazardous substances under CERCLA. And in its February 2020 program update to the PFAS Action Plan, the EPA proposed to regulate PFAS under the SDWA.

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