The U.S. Environmental Protection Agency (EPA) announced on April 9, 2024, the release of an updated “Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances.” According to EPA, the updated guidance “reflects the latest, best available science to provide information that managers of [per- and polyfluoroalkyl substances (PFAS)] wastes can use to evaluate the most appropriate destruction, disposal, or storage method among those currently available.” EPA notes that the guidance recommends that decision-makers “prioritize the use of technologies with the lowest potential for environmental release, to better protect people and communities from PFAS exposures.” EPA announced the availability of the guidance on April 16, 2024, beginning a 180-day comment period. 89 Fed. Reg. 26879. Comments are due October 15, 2024. The updated interim guidance does not establish requirements for destruction or disposal of PFAS materials.

Background

On December 22, 2020, EPA announced the availability of new interim guidance on destroying and disposing of certain PFAS and PFAS-containing materials for public comment. 85 Fed. Reg. 83554. According to EPA’s December 18, 2020, press release, the interim guidance assembles and consolidates information in a single document that generally describes thermal treatment, landfill, and underground injection technologies that may be effective in the destruction or disposal of PFAS and PFAS-containing materials. To help ensure informed decision-making, the technology-specific information describes uncertainties and how those uncertainties should be weighed given situation-specific factors, such as the waste’s physical phase (liquid, solid, gas).

As required by the National Defense Authorization Act for Fiscal Year 2020 (FY20 NDAA), the interim guidance addresses PFAS and PFAS-containing materials, including:

• Aqueous film-forming foam (for firefighting);
• Soil and biosolids;
• Textiles, other than consumer goods, treated with PFAS;
• Spent filters, membranes, resins, granular carbon, and other waste from water treatment;
• Landfill leachate containing PFAS; and
• Solid, liquid, or gas waste streams containing PFAS from facilities manufacturing or using PFAS.

Updated Interim Guidance

EPA’s fact sheet states that the updated interim guidance contains a new technology evaluation framework to help analyze the safety and effectiveness of new destruction and disposal (D&D) technologies. The interim guidance summarizes scientific information on the current understanding of PFAS and focuses on three currently used D&D technologies:

• Underground injection (UIC);
• Landfills; and
• Thermal treatment under certain conditions, including incineration.

Updated Information on D&D Technologies

The fact sheet states that as a general approach, “EPA encourages managers of PFAS and PFAS-containing materials to use D&D options that have a lower potential for releasing PFAS to the environment as described in Section 1 of the interim guidance.” According to EPA, in general, the following technologies (in no particular order) have a lower potential for environmental release of PFAS compared to other technologies within the categories of storage, underground injection, landfilling, and thermal treatment:

• Interim storage with controls: Storage is not a D&D technology but may be a short-term option. The fact sheet notes that storage may be more fitting for some PFAS materials than others.
• UIC–Permitted Class I non-hazardous industrial or hazardous waste injection wells: According to the fact sheet, the standards associated with the construction, operation, and monitoring of these Class I wells are designed to isolate liquid wastes deep below the land surface and ensure protection of underground sources of drinking water. This technology may not be appropriate or available everywhere.
• Landfills-Permitted hazardous waste landfills: The fact sheet states that when landfill disposal is selected and PFAS concentration of the waste is relatively high, EPA recommends using a hazardous waste landfill. The fact sheet notes that for all landfill types, new information shows landfills release more PFAS to the environment than previously thought in 2020. Hazardous waste landfills have leachate emission protections that help control environmental releases of PFAS.
• Thermal treatment-Permitted hazardous waste combustors that operate under certain conditions: According to the fact sheet, new research since 2020 indicates that thermal treatment units operating under certain conditions are more effective at destroying PFAS and minimizing releases or exposures. The fact sheet notes that certain hazardous waste combustors and certain granular activated carbon (GAC) reactivation units may operate under these conditions, but uncertainties remain.

The fact sheet notes that EPA has released a new analytical test method, OTM-50, that will help collect more data and answer some of these questions, such as those concerning products of incomplete combustion. The updated interim guidance encourages testing with a range of methods at thermal treatment facilities before accepting large quantities of PFAS-containing materials. These and other technologies are discussed in the interim guidance, plus testing and research needs to improve technology performance, improve understanding of PFAS behavior, and reduce uncertainties.

Emerging D&D Technologies

The fact sheet states that many companies and researchers are developing and testing new PFAS D&D technologies. The updated interim guidance provides a technology evaluation framework to help analyze the safety and effectiveness of new D&D technologies, noting the need for innovation, research, and validation.

Impact on Vulnerable Communities

According to the fact sheet, EPA has also shared updated tools, methods, and approaches for considering the impacts of potential releases and exposure on communities located near D&D facilities. The fact sheet states that EPA recommends using these tools “to identify and consider potential impacts and ways to protect the health of nearby vulnerable populations, engage the community, and inform decision-making.”

Next Steps

According to the fact sheet, EPA and other government, academic, and private institutions will continue research to understand better PFAS D&D. EPA will review public comments, advances in research, and new science to revise the interim guidance again within three years as required by the FY20 NDAA.

Commentary

Bergeson & Campbell, P.C. (B&C^®) supports EPA’s development and issuance of the updated interim guidance as a means of informing its activities to mitigate potential risks from PFAS. The updated interim guidance is not a regulation, but it may lead to the imposition of requirements based on EPA’s regulatory activities on PFAS. EPA’s updated interim guidance identifies the PFAS-containing materials covered by the FY20 NDAA that are destroyed or disposed of as “wastes.” It does not, however, “establish what concentrations of PFAS in wastes, spent products, or other materials or media would necessitate destruction or disposal.” Below, we provide two examples of when the updated interim guidance and the new analytical method (i.e., OTM-50) may serve as the basis for ensuring compliance with EPA’s regulatory requirements.

Taylor et al. (2014) published findings from a TSCA enforceable consent agreement and showed that incineration of fluorotelomer-based polymers at 1,000 ˚C with a two-second resident time did not result in the formation of detectable levels of perfluorooctanoic acid (PFOA). EPA has included these operating conditions as part of its risk management requirements for PFAS notified under TSCA Section 5. The updated interim guidance states that “there are limited emissions data (e.g., no data for PIC [products of incomplete combustion] formation and the presence of PFAS in air pollution control device residuals) at full-scale facilities…” We, therefore, anticipate that EPA will expand its risk management requirements on TSCA notified PFAS to include specific incineration operating conditions, as noted above, and, potentially, to include monitoring emissions using OTM-50 or subsequent updates of this method. We also anticipate that EPA may include testing on PICs as part of its future TSCA Section 4 test orders on PFAS.

On April 10, 2024, EPA issued the final National Primary Drinking Water Regulations (NPDWR) for six PFAS, which included maximum contamination levels (MCL) in drinking water. For discussion, see our forthcoming memorandum. EPA has not, however, developed standards for PFAS in biosolids from wastewater treatment facilities. In the updated interim guidance, EPA stated that it “is currently conducting a refined risk assessment for PFOA and PFOS [perfluorooctanesulfonic acid] in biosolids [citation omitted].” This is an important consideration because, according to EPA, 1,955,684 metric tons of sewage sludge was land applied out of 4,548,462 metric tons of sewage sludge generated in 2021 (i.e., nearly 43%), compared to incineration of 633,054 metric tons (i.e., nearly 14%). EPA’s risk assessment on biosolids may increase the need for incineration and lead to more stringent requirements, including monitoring PICs.