EPA Takes Another Step Toward Regulation of PFAS Air Emissions

EPA Takes Another Step Toward Regulation of PFAS Air Emissions

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. As part of its release, EPA Assistant Administrator for Research and Development Chris Frey noted that OTM-50 is intended to apply to chemical manufacturers, industrial users of PFAS and PFAS-destruction technologies. Its applicability is likely to broaden into other industries, however, as EPA’s understanding of PFAS in air emissions evolves. EPA also published a related FAQ.

While much of the recent focus on PFAS exposure has centered on water contamination and household products, EPA has increasingly set its sights on air emissions as a target route of exposure requiring regulation. Indeed, one of the central missions laid out in EPA’s 2021 “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024” is to build the technical foundation necessary to regulate PFAS in air emissions.

In line with this objective, EPA released the draft test method in January to measure 30 volatile, nonpolar fluorinated compounds (VFCs), including certain PFAS, in air emissions released from stationary sources. The draft test method, titled “Other Test Method 50 (OTM-50): Sampling and Analysis of Volatile Fluorinated Compounds from Stationary Sources Using Passivated Stainless-Steel Canisters,” builds on OTM-45, a test method released by EPA in 2021 and used to measure approximately 50 polar (semi-volatile and particulate-bound) PFAS in air emissions.

The EPA summary document accompanying OTM-50 acknowledges the current lack of standardized methods to measure PFAS and VFCs in air emissions. This invites a host of issues, including “inconsistent findings, incomparable measurements, and lack of coordination between policy makers, facilities, and control technology development.” With the release of OTM-50, EPA aims to provide a consistent testing method that it believes reflects current best practices to sample and analyze certain PFAS and VFC targets from stationary sources, including vents and stacks.

EPA had indicated in December that it was aiming to release OTM-50 together with its updated, interim PFAS destruction and disposal guidance. However, the guidance remains under review by the White House Office of Management and Budget. OTM-50 may be particularly useful in measuring industrial compounds and products of incomplete combustion/destruction tied to incinerator emissions. Incineration is a method being considered by EPA as part of its interim PFAS destruction and disposal guidance.

EPA’s summary document notes that its release of OTM-50 is not an endorsement or a regulatory approval of the test method and that OTM-50 may ultimately be implemented by EPA, state or local authorities through independent actions. Better detection of air emissions through reliable testing methods, including OTM-50, will only encourage the eventual regulation of air emissions, particularly around incineration and combustion of PFAS.

Duane Morris has an active PFAS Team to help organizations and individuals plan, respond to, and execute on your PFAS issues and initiatives. We would be happy to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you.

For More Information

If you have any questions about this post, please contact  Lindsay Ann Brown or Louis C. Formisano, the authors, Sharon Caffrey, Brad A. Molotsky, Alice Shanahan,  Seth Cooley, Alyson Walker Lotman, Lori Mills or Kelly Bonner, the attorneys in our PFAS Working Group or the attorney in the firm with whom you are regularly in contact.

EPA Looking to Expand PFAS Substances Regulated under Superfund

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On September 6, 2022, the United States Environmental Protection Agency (“USEPA”) had previously issued a notice of proposed rulemaking to designate two (2) specific PFAS substances, known as perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as CERCLA hazardous substances. We have previously blogged about this Notice and it can be found on our website if of interest. The comment period to that proposed rulemaking has now closed and USEPA is presently evaluating comments received.

In the meantime, however, USEPA is considering a new initiative to expand the list of Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) regulated PFAS beyond PFOA and PFOS to include seven (7) additional PFAS, their salts and precursors and, possibly, certain categories of PFAS.

In a pre-publication notice issued by the USEPA on April 13, 2023 (to be published in the Federal Register on that same date), USEPA announced its intention to consider expansion of its CERCLA hazardous substances list developed under potentially to include seven (7) additional per- and polyfluoroalkyl substances (PFAS) on that list.

As set forth in the pre-publication notice, additional PFAS under consideration for regulation includes:

Perfluorobutanesulfonic acid (PFBS), CASRN 375-73-5;
Perfluorohexanesulfonic acid (PFHxS), CASRN 355-46-4;
Perfluorononanoic acid (PFNA), CASRN 375-95-1;
Hexafluoropropylene oxide dimer acid (HFPO-DA), CASRN 13252-13-6 (sometimes called GenX);
Perfluorobutanoic acid (PFBA) CASRN 375-22-4;
Perfluorohexanoic acid (PFHxA) CASRN 307-24-4; and
• Perfluorodecanoic acid (PFDA) CASRN 335-76-2.

Take Aways:

USEPA will also be giving consideration to the precursors to PFOA, PFOS, and other PFAS listed above as well as whether USEPA should take action to designate whole categories of PFAS based on shared characteristics among the PFAS listed in those categories.

To these ends, USEPA is seeking a variety of data sources and information to assist them is deciding whether to expand the CERCLA list. The Comment period will run until approximately July 6, 2023 (i.e., sixty (60) days from publication in the Federal Register which is anticipated on April 13, 2023).

Duane Morris has an active PFAS Team to help organizations and individuals plan, respond to, and execute on your PFAS issues and initiatives. We would be happy to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you. For more information or if you have any questions about this post, please contact Lori Mills, the author, or Lindsay Brown, Sharon Caffrey, Brad A. Molotsky, Alice Shanahan,  Seth Cooley, Alyson Walker Lotman, Kelly Bonner, Sharon Caffrey or the attorney in the firm with whom you in regular contact or the attorney in the firm with whom you are regularly in contact.

EPA Now Taking Comments on Its PFAS Enforcement Discretion Policy

On September 6, 2022, the U.S. Environmental Protection Agency (EPA) issued its proposed rulemaking to designate certain per- and polyfluoroalkyl substances (PFAS) as Hazardous Substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which would have a significant legal impact across the country and create potential liability for PFAS release and/or contamination for a broad set of entities in numerous industries. Accordingly, the EPA has been developing an enforcement discretion policy and recently concluded two public listening sessions to seek stakeholder input on concerns about CERCLA enforcement for PFAS contamination. The EPA will review and consider the input received as it finalizes the CERCLA PFAS enforcement discretion policy.

Read the full text of this Alert on the Duane Morris LLP website.

New Jersey and PFAS Regulation — What’s Come Before and What Does 2023 Have in Store?

From 2018 through 2020, the New Jersey Department of Environmental Protection (the Department or NJDEP) adopted a suite of new rules to address certain per- and polyfluoroalkyl substances (PFAS), specifically, PFOA, PFOS and PFNA, under multiple Department programs. Since that time, the Department continued to advance additional measures targeting these compounds under the auspices of its regulatory and enforcement authorities. More recently, the New Jersey Legislature has taken aim at these and other PFAS, expanding the scope of certain existing laws and introducing a collection of new bills regulating the use, detection and research of PFAS throughout the State. Here’s an overview of the current regulation of PFAS in New Jersey and what to expect in 2023.

Drinking Water Maximum Contaminant Levels

New Jersey was at the forefront of regulating PFAS in drinking water, being one of the first states to propose and adopt regulations setting a maximum contaminant level (MCL) for PFNA (13 parts per trillion (ppt)) in 2019, followed closely by the adoption of MCLs for PFOA (14 ppt) and PFOS (13 ppt) in 2020. These regulations require public water systems to routinely monitor for these contaminants, notify their customers of any violation within 30 days of determining that a violation has occurred, and report MCL violations to the public in their annual Consumer Confidence Reports.

Because the current New Jersey MCL regulations apply to public water systems only, New Jersey also expanded the testing of private wells under the Private Well Testing Act (PWTA), to address PFOA, PFOS and PFNA. The PWTA requires the testing of private potable wells prior to closing the sale of the property and also requires landlords to test private potable wells every five years and provide those test results to their tenants. As of December 2021, PFOA, PFOS and PFNA were added to the PWTA list of water quality parameters required to be tested.

New Jersey’s MCLs for PFOA and PFOS could change in 2023. The United States Environmental Protection Agency (US EPA) anticipates issuing a proposed National Primary Drinking Water Regulation for PFOA and PFOS in 2023. The proposal, which is expected in March, will include a maximum contaminant level goal (which is unenforceable) and an enforceable standard, which may be an MCL or a required treatment technique. In the event the US EPA adopts an MCL for PFOA or PFOS that is lower than the standard adopted by New Jersey, the US EPA MCL will apply (as would any treatment technique that it may require). US EPA anticipates finalizing the drinking water regulation by year-end. Continue reading “New Jersey and PFAS Regulation — What’s Come Before and What Does 2023 Have in Store?”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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