Seth Cooley

February 5, 2024 by Brad A. Molotsky

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.

April 13, 2023 by Brad A. Molotsky

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.

January 15, 2023January 15, 2023 by Brad A. Molotsky

PFAS – Pennsylvania DEP Adopts new limits on 2 PFAS Chemicals – Required Testing, Reporting and Treatment

Earlier this past week, the Pennsylvania Department of Environmental Protection (“DEP”) adopted new limits on two classes of PFAS chemicals.

Pennsylvania joins a growing list of states that have implemented limits and, in some cases, bans, on certain types of PFAS and PFOS chemicals. According to the new rule, Pennsylvania will now mandate that all public and private drinking water treatment facilities in the Commonwealth, together with schools and healthcare facilities, and commercial bottled water plants, will all be required to test their water for PFAS and PFOS, report the findings and treat affected water for the chemicals present above the new maximum contaminant levels (MCLs).

Pennsylvania’s new regulations will restrict the PFAS compounds PFOS (perfluoro-octane sulfonic acid) at 14 parts per trillion, and PFOA (perfluorooctanoic acid) at 18 parts per trillion.

Studies have indicated that over 97% of all humans have PFAS compounds in their blood stream that bio accumulates over time.

For decades, PFAS chemicals have been widely used in consumer products such as cosmetics, personal care products, furniture stain resistant applications, carpet stain guard, flame retardant fire fighting foam (including foam used at all airports in the US), non-stick cookware, flame-retardant clothing, weather resistant outdoor clothing, some food packaging, as well as in firefighting foam used at current and decommissioned military bases.

While the new DEP regulations set the MCLs for these chemicals for the first time in Pennsylvania, critics have pressed for a lower MCL, for more PFAS compounds to be regulated and for private wells to be protected.

New Jersey recently proposed a 4-bill set of additional PFAS restrictions and already restricts PFAS at 13 parts per trillion for PFOS and PFNA, and 14 parts per trillion for PFOA. Delaware is also considering regulations akin to Pennsylvania’s and has proposed implementing its own MCLs.

At the federal level, the Environmental Protection Agency is continuing to study PFAS and had set a federal health advisory level for PFAS, but unlike the PA MCLs, the federal advisory is just that, advisory, and, as such, is not per se actionable. As part of its ongoing effort to study and limit the effects of PFAS, in June, 2022, the EPA revised its prior advisory guidance set in 2016 at 70 parts per trillion down to .004 parts per trillion, after announcing the compounds were more concerning than EPA had previously thought.

Key Take Away – Pennsylvania joins a growing list of states that are actively reviewing and setting standards on what is acceptable and not in drinking water, soil, products, food packaging, and other consumer products. The new PA rule will require testing, reporting and treatment for affected water which exceeds the noted standard.

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 discussion 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 Lindsay Brown, Brad A. Molotsky, Alyson Walker Lotman, Alice Shanahan, Seth Cooley, 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.

January 11, 2023 by Brad A. Molotsky

PFAS – Request for Public Comment on Data Collection regarding “Human Health Effects of Drinking Water Exposures to Per-and Polyfluoroalkyl Substances: A Multi-Site Cross Sectional Study”

Earlier this week, the Agency for Toxic Substances and Disease Registry (“ATSDR”) issued a notice – “Proposed Data Collection Submitted for Public Comment and Recommendations”.

The notice was published in the Federal Register on January 11, 2023 by Jeffrey M. Zirger, Lead, Information Collection Review Office, Office of Scientific Integrity, Office of Science, Centers for Disease Control and Prevention (the “Notice”).

ATSDR is asking the general public and other federal agencies to comment on a continuing information collection as required by the Paperwork Reduction Act . This notice requests comment on a proposed information collection project entitled “Human Health Effects of Drinking Water Exposures to Per- and Polyfluoroalkyl Substances (PFAS): A Multi-Site Cross-Sectional Study (the Multi-Site Study)”. The goal of the research is to develop and deploy sound study methods to better determine if and how drinking water exposure to PFAS is related to health outcomes.

ATSDR is particularly interested in comments that will help:

1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

2. Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

3. Enhance the quality, utility, and clarity of the information to be collected;

4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses; and

5. Assess information collection costs.

Per the Notice, ATSDR seeks to cumulatively enroll approximately 9,100 participants (7,000 adults and 2,100 children and their parents) from communities exposed to PFAS-contaminated drinking water. In total, each recipient will attempt to meet a target recruitment of 1,000 adults and 300 children. Annualized estimates are 3,033 participants (2,333 adults and 700 children). Over the first three years of the five-year cooperative agreement program, the recipients have enrolled over 3,000 adults and over 300 children (as of 11/17/2022). The enrollment of children has been especially challenging during and following major closures and access to schools and other educational facilities due to the COVID-19 pandemic.

Further, according to the Notice, the main goal of the cross-sectional study is to evaluate associations between measured and reconstructed historic serum levels of PFAS including PFOA, PFOS, and PFHxS, and selected health outcomes. The health outcomes of interest to the ADSDR include lipids, renal function and kidney disease, thyroid hormones and disease, liver function and disease, glycemic parameters and diabetes, as well as immune response and function in both children and adults. In addition, the study has been designed to investigate PFAS differences in sex hormones and sexual maturation, vaccine response, and neurobehavioral outcomes in children. In adults, additional outcomes of interest by the ATSDR include cardiovascular disease, osteoarthritis and osteoporosis, endometriosis, and autoimmune disease.

To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7118; Email: omb@cdc.gov

If interested in the full text of the Notice, please see attached: http://www.gpo.gov/fdsys/pkg/FR-2023-01-11/html/2023-00333.htm

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 discussion 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 Lindsay Brown, Brad A. Molotsky, Alyson Walker Lotman, Alice Shanahan, Seth Cooley, 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.

December 24, 2022January 6, 2023 by Brad A. Molotsky

PFAS – The “Preventing PFAS Runoff at Airports Act” signed into law

Earlier this week, President Biden signed the Bipartisan “Preventing PFAS Runoff at Airports Act” (the “Act”) that was authored by Senator Gary Peters (MI).

The Act will enable spending from the Federal Aviation Administration (the “FAA”) to commercial airports in the US for the airports to purchase testing equipment to be used on fire fighting devices to confirm if the fire fighting equipment has been impacted or contaminated with PFAS.

The testing devices are commonly referred to as “input-based testing systems” and are designed to limit and prevent exposure to PFAS by the fire fighters using the equipment. Continue reading “PFAS – The “Preventing PFAS Runoff at Airports Act” signed into law”