What does the EPA’s new Superfund rule for PFOA and PFOS mean?

The US-EPA’s announcement of 19 April 2024 about PFAS has many companies, federal agencies and local or state facilities investigating risks for new, costly litigation and preparing technical strategies for cleanups.

In RIN 2050-AH09, the EPA has designated two common PFAS varieties — perfluorooctanoic acid (PFOA) and perfluoro octane sulfonic acid (PFOS) — as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The announcement of 19 April is the pre-publication version of the final Rule. This Rule will take 60 days, from the date of announcement, to be finalized. Initially, the reporting requirement for releases under CERCLA for PFOA and PFOS will be a threshold of one (1) pound per day. This is a very high threshold given the nature of PFAS chemicals and may be lowered in the years ahead.

Entities accountable for contaminated sites are worried about the Rule, because the liability provisions CERCLA imposes routinely translate into costly litigation and cleanups.

It’s important to step back and think this through. Part of the issue has to do with what CERCLA, also known as Superfund, means. While many people think of a “Superfund site” as a vast expanse of contaminated property on a level with Love Canal, it’s really intended to serve as a funding mechanism. A declared Superfund site is one in which the authorities can require the polluter to pay for the cleanup.

Superfund is often of most concern to entities considering buying a property that may have had some historic industrial use, that may contain contaminated soil and groundwater. The EPA has provisions in place that will protect the purchaser of the property – particularly if that purchaser is a local government that wants to better their community by cleaning up a brownfield property.

We expect that one way the EPA will use this new rule is in cases of urgency. With the inclusion of PFOS and PFOA to its list of contaminants, the agency will be able to issue violations, take actions, force cleanups, and recover costs from the polluters. It achieves CERCLA’s dual objectives – the timely cleanup of contaminated sites and ensuring that those responsible pay for the cleanup.

We expect that this is just the start – the CERCLA Rule will likely be followed by other requirements around the cleanup of PFAS-impacted sites.

This is partly based on actions the EPA has already taken. For example, in February 2024, the EPA proposed nine compounds be added to the Resource Conservation and Recovery Act (RCRA), which is the principal federal law in the USA that governs disposal of solid waste and hazardous waste. We expect more materials to be added the EPA’s list.

This may have impacts on the final disposal of PFAS-laden waste that is recovered from wastewater – such as concentrated liquid containing PFAS, as well as media such as resins and filters that contain PFAS.

The trend is towards cradle-to-grave responsibility that companies have for their products. That includes responsibility to not just sequester or isolate the recovered PFAS, but to destroy them.

That’s where the designed-in permanence of PFAS molecules comes into play – these so-called “forever chemicals” contain a carbon-fluorine bond, one of the most durable known to molecular science.

The US Air Force shows the way on PFAS cleanup

For a look into the future of PFAS cleanup, we can look to actions taken by the US Air Force. Many USAF properties have PFAS impacts, largely because of PFAS-containing firefighting foam used in firefighting practice areas and the locations of incidents involving hydrocarbon fires. There has been widespread concern from Air Force personnel, their families, and residents of surrounding communities about PFAS leaking from these sites and into the groundwater that enters their drinking water wells.

Accordingly, the USAF has been taking concrete steps towards not just removing PFAS from the groundwater pumped from on-base hotspots but furthering the development of technologies for PFAS molecule destruction.  this includes using and validatingOnvector’s innovative Plasma Vortex technology on USAF bases. Plasma Vortex technology on USAF bases.

Onvector is devoted to solving the PFAS puzzle, by perfecting low-cost, practical technology for breaking apart PFAS molecules into harmless constituents. To learn more about how to be part of our journey, please get in touch.

Contact us for more information