Understanding the new USEPA’s PFOA and PFOS Regulations

• Require PFOA/PFOS compounds to be managed as hazardous materials under the US Department of Transportation (USDOT).
  
  
• As a CERCLA-listed hazardous substance, affected parties must now comply with reporting requirements if PFOA/PFOS chemicals are spilled or released. Releases of PFOA/PFOS that meet or exceed the reportable quantity of one (1) pound within a 24-hour period must be reported to the National Response Center, State, Tribal, and local emergency responders.

• No RCRA Hazardous Waste Requirements: The Resource Conservation and Recovery Act (RCRA) oversees federal regulations for the handling, characterization and management of hazardous waste. The new rule does not regulate or require management and disposal of PFOA/PFOS as hazardous waste under USEPA RCRA regulations. 
  
  
• Additional Environmental Due Diligence Requirements may not be needed: The designation of these chemicals as a hazardous substance under CERCLA does not inherently necessitate investigative or remedial measures. The rule does not require additional environmental due diligence activities at this point unless there is a compelling reason to do so (e.g., a source and a CERCLA-defined release to the Environment at the Subject Property). For instance, the completion of a Phase I Environmental Site Assessment (ESA) according to the ASTM International standard practices such as E1527-21 already considers when these chemicals could be present and should be included as part of the Phase I ESA. 

Navigating this regulation requires a partner who not only understands the science behind PFAS, specifically PFOA/PFOS, but also the legal and financial liabilities. With expertise in risk assessments, remediation technologies, and environmental compliance support, we are equipped to manage potential liabilities effectively. The importance of comprehensive risk assessment and adherence to regulatory compliance cannot be overstated, as they are critical in mitigating potential liabilities. Our approach encompasses initial risk assessments to ongoing environmental management, assisting clients to not only comply with regulations but also to set industry benchmarks for sustainability, safety, and risk awareness and reduction.

While not subject to RCRA requirements now, nine PFAS are proposed to be added to the list of hazardous constituents under RCRA. In February 2024, the USEPA proposed adding PFAS compounds to the list of hazardous constituents under RCRA; including PFOA, PFOS, Perfluorobutanesulfonic Acid (PFBS), GenX, Perfluorononanoic Acid (PFNA), Perfluorohexanesulfonic Acid (PFHxS), Perfluorodecanoic Acid (PFDA) Perfluorohexanoic Acid (PFHxA), and Perfluorobutanoic Acid (PFBA).

If PFAS is added as a hazardous constituent under RCRA in the future, it would impact waste generators, waste disposal facilities, as well as RCRA Corrective Action sites. Regulation as a hazardous waste under RCRA would create additional onsite management requirements, recordkeeping requirements, training, as well as additional costs for off-site transportation and disposal. This would have a large impact on the US disposal market if PFAS, including PFOA/PFOS compounds, were considered RCRA hazardous waste. US hazardous waste disposal capacity may not be able to meet the demand for new generators of hazardous waste.

The new USEPA rule is a shift in environmental oversight, particularly concerning the regulation of PFOA/PFOS chemicals. Although it does not impose RCRA hazardous waste management and disposal rules, it affects substantial changes in other aspects. These changes include reassessing approaches to handling PFOA/PFOS, ensuring the compounds are managed as hazardous materials under USDOT regulations, and perhaps most critically, enforcing strict reporting requirements for any spills or releases of these chemicals. 

By understanding the specifics of what the rule impacts and does not impact, entities can better fulfill their obligations and remain compliant. We are committed to assisting you through this transition, in your compliance with the new regulations but also excelling in your environmental responsibilities, risk reduction and achieving your goals.