The U.S. Environmental Protection Agency (EPA) focuses on strengthening the regulation of PFAS chemicals, potentially including establishing enforceable limits on these substances in drinking water and other environmental media. Enhanced monitoring and reporting are also part of this initiative to understand PFAS prevalence and impact better.
Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund), the EPA is progressing towards officially classifying two PFAS constituents – perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) – as hazardous substances (HSs). This action aims to simplify the process of cleaning up contaminated sites and minimizing human exposure to these persistent chemicals.
Proposed CERCLA Requirements
With PFOA and PFOS designated hazardous under CERCLA, facilities will be required to report on releases at or exceeding the reportable quantity (RQ) assigned to these substances. Under the proposed rule, this would be a one-pound or more release in 24 hours. Once PFOA and PFOS are designated hazardous substances, the EPA will no longer need to show an immediate threat. As a hazardous substance, that threat is already assumed, prompting the investigation and remediation of PFAS releases and allowing the EPA and private entities to recoup costs for cleaning up these contaminations.
Once the CERCLA HS designation becomes final, EPA plans to issue a CERCLA PFAS Enforcement Discretion Policy. Preliminarily, we understand that the enforcement policy will focus more on manufacturers, federal facilities, and industrial facilities that have released significant PFAS, resulting in significant public health and environmental impacts, as opposed to community water utilities, POTWs, and landfills.
The CERCLA HS public rulemaking notice was issued in September 2022, with the comment period closing in November 2022 (https://www.govinfo.gov/app/details/FR-2022-09-06/2022-18657). Over 64,000 comments filed indicate a very high degree of public interest. The finalization of the rule is expected in March 2024.
CERCLA Impact on Landfills and Facilities
PFAS, prevalent in a myriad of consumer products like nonstick cookware, carpets, upholstery and fabrics, toilet paper, and food packaging, has been part of the waste stream for a long time. Addressing their contamination is challenging and expensive due to the evolving nature of treatment and destruction technologies.
The CERCLA classification of PFOA and PFOS as hazardous will profoundly affect landfills, particularly those with contamination. Landfill operators might bear the fiscal responsibility for remediation efforts under CERCLA.
Waste management companies should be especially concerned, given that PFAS is found in most landfills due to the prevalence of chemicals in consumer goods. These companies could face legal action for contributing to cleanup costs should PFAS migrate outside the landfill. The potential for broader PFAS classification raises concerns about re-openers for these sites in the future.
Landfills accepting PFOA and PFOS waste will face stricter regulations, including more rigorous monitoring, reporting, and management to prevent environmental release. This may lead to changes in waste acceptance policies to limit or prohibit PFAS-containing waste streams.
Landfills with a history of PFAS waste may undergo investigations into past disposal methods and potential past contamination. Enhanced containment and leachate management systems may be necessary to prevent PFOA and PFOS from leaching into the environment.
Industry organizations like the Solid Waste Association of North America and the National Waste and Recycling Association have expressed concerns about the substantial fiscal impact of this designation on landfills, with potential cost pass-through to ratepayers and broader unintended consequences.
The regulation of PFAS under CERCLA will have notable impacts on leachate treatment. Facilities that handle leachate may need to implement more advanced and effective treatment technologies to remove PFAS from leachate.
Facilities may need to implement supplemental treatment processes to reduce the concentration of PFAS in the waste stream before it reaches the leachate treatment stage or perhaps after primary treatment. EPA is working on proposed regulations to address PFAS in wastewater under the Effluent Limitations Guidelines program and the National Pollutant Discharge Elimination System permitting program.
The need for more sophisticated treatment technologies and processes will lead to higher operational costs for waste management facilities. Costs include installing new treatment systems and ongoing expenses related to their operation and maintenance.
Overall, the regulation of PFAS will cause significant changes in how leachate is treated and managed, with implications for costs, technology, compliance, and overall waste management practices.
Conducting comprehensive risk assessments to find and address potential sources of PFAS contamination within their operations can help manage and mitigate risks effectively. Waste management companies should consider reviewing their liability insurance coverage to account for potential risks associated with handling PFAS-contaminated waste.
If waste management companies incur significant expenses in managing PFAS waste, exploring legal avenues for cost recovery from PFAS producers might be a long-term strategy to consider.
Remember, PFAS degradation is exceptionally slow or non-existent under normal environmental conditions, so businesses can be held accountable for contamination that occurred years ago. Cases that were closed years ago could reopen.
In summary, the CERCLA classification of PFOA and PFOS as CERCLA hazardous substances marks a significant shift in landfill management, emphasizing the need for more aggressive waste practices to safeguard public health and the environment from these persistent chemicals.
Our engineers will discuss technologies to treat and remove PFAS now and the technologies that show the most promise to scale efficiently as we keep you aware of the impact of pending regulations. Please look on LinkedIn for more posts, papers, and webinars to come.
Jeff Marshall, PE, is a Vice President of SCS Engineers, Environmental Services Practice Leader for SCS offices in the Mid-Atlantic region, and our National Expert on Emerging Contaminants and Innovative Technologies. His four decades of experience include a diversified project engineering and management background, emphasizing environmental chemistry, hazardous materials, waste, and human health risk issues. Focus areas include environmental permitting, regulatory compliance, and hazardous materials treatment and remediation. He is a licensed professional engineer in Virginia, Maryland, West Virginia, North Carolina, and South Carolina.
David L. Palmerton, Jr., PG, has more than 35 years of experience in environmental consulting in environmental liability assessment, investigation, remediation, due diligence, and construction quality control. His experience includes consulting with large commercial, industrial, and academic entities. He also has extensive experience with the energy industry, specifically oil and gas upstream operations. He has managed strategic and technical environmental consulting issues for Fortune 100 companies throughout the United States. Mr. Palmerton is a professional geologist in several states and a former Certified Hazardous Materials Manager.