A U. S. Policy and Regulatory Alert from K&L Gates Attorneys
By Janessa M. Glenn, Steve Morton, Dawn M. Lamparello
and Cliff L. Rothenstein
In response to Congressional direction in the National Defense Authorization Act for Fiscal Year 2020, Public Law No: 116-92, on 18 December 2020, the Environmental Protection Agency (EPA) issued “Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances” (Interim Guidance) as part of its continuing efforts to regulate the large body of perfluoroalkyl and polyfluoroalkyl substances, collectively referred to as “PFAS.” See, Interim Guidance.
EPA issued the Interim Guidance, not as a rulemaking or policy statement, but to provide current scientific information on disposing of or destroying PFAS and PFAS-containing materials.
PFAS are often referred to as the “forever chemicals” because they do not break down easily or quickly in the environment. Thus, they present a unique challenge for disposal/destruction.
The Interim Guidance outlines three methods that may be effective and are currently available for disposal or destruction—landfill disposal, underground injection disposal, and thermal treatment for destruction (incineration)—and discusses the data gaps and challenges for each, along with noting the need for further research into these methods for future guidance. EPA intends for this information to inform the decision making process of those managing the destruction/disposal of this material.
The Interim Guidance identifies six waste streams that commonly contain PFAS:
- Aqueous film-forming foam (used in fire suppression);
- Soil (directly through land application or spills, or indirectly through particles released from stack emissions, for example) and biosolids (the Interim Guidance refers to the definition in 40 C.F.R. Part 503 for “sewage sludge,” also called “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.
Congress specifically identified these six areas in the National Defense Authorization Act for Fiscal Year 2020 as the waste EPA was required to address through issuance of the Interim Guidance. As a result, while EPA recognizes the information could be useful to other PFAS and PFAS-containing materials, the Interim Guidance only covers these six materials.
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