We all have heard the rhetoric: PFAS is the next PCBs or Asbestos triggering an avalanche of EPA (Environmental Protection Agency) regulations, guidelines, and of course, lawsuits. This article takes a closer look at where PFAS components may show up in surface finishing operations and how the EPA’s regulation of PFAS may increase your facility’s liability risk.
The acronym “PFAS” stands for perfluoroalkyl substances (PFAS). The list of PFAS components is long, but the EPA seems to focus on a few in every major guidance document or rulemaking. Interim health advisories have been set for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). The EPA has also set final health advisories for hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt (together referred to as ‘‘GenX chemicals’’) and perfluorobutane sulfonic acid and its related compound potassium perfluorobutane sulfonate (together referred to as ‘‘PFBS’’). Every facility should review safety data sheets for the presence of PFAS components in every chemical substance manufactured, processed, or otherwise used onsite.
PFAS uses in the surface finishing industry
There is little doubt surface finishers may have used PFAS in the workplace. A few articles have been published on this topic. Uses for PFAS discussed in those articles are generally summarized here.
Since the 1950s, air pollution control technologies have used PFOS as mist suppressants in plating baths. PFOS is demonstrably effective at preventing toxic metals from volatilizing into the workplace and ambient air. As part of its national emission standard for hazardous air pollutants (NESHAP), the EPA allowed hard chromium electroplating sources to rely on surface tension limits as an alternative to the chromium emissions concentration limits specified in the NESHAP rule, and suppressants used for compliance may contain PFAS compounds if manufactured before 2016.
Experts also indicate there may be other uses of PFAS chemicals at metal finishing shops:
- Use for prevention of corrosion, reduction in mechanical wear, and enhancement of aesthetic appearance (Kissa 2001).
- Some PFAS are effective blocking agents for aluminum foil (Kissa 2001).
- Chromium anodizing operations may use PFAS chemicals as wetting agents to form an oxide layer on aluminum and provide resistance to corrosion (EPA 2012).
Releases of PFAS at the facility
Because “matter is neither created nor destroyed,” PFAS chemicals used at surface finishing operations may work their way into the environment. Air emissions may contain PFAS from the use of tension suppressants or wetting agents. Use as wetting agents or in plating baths allow the same PFAS chemicals to be discharged with wastewater. Treatment of wastewater at surface finishing facilities may result in PFAS accumulation in wastewater treatment sludges, which are then sent offsite for land disposal.
PFAS regulatory landscape
There is no deficiency in the regulatory programs the EPA has designed for PFAS releases from the metal finishing industry. Each raises the risk of enforcement for noncompliance or long-term liability for cleanup costs.
Wastewater discharge permits may now include effluent limits or “monitor/report” obligations for PFAS compounds. The EPA announced in a November 2020 guidance document that it will use Clean Water Act permitting authority to reduce discharges of PFAS at the source and to obtain more comprehensive monitoring information on potential sources of PFAS. Information obtained as part of the initiative, of course, will be useful in setting effluent guidelines, developing analytical methods, and publishing water quality criteria for PFAS.
Earlier this year, the EPA published draft “aquatic life criteria” (ALC) for PFOS and PFOA chemicals, which will directly or indirectly impact most surface finishers. Final ALCs are necessary for States to set effluent limits in wastewater discharge permits for those industries discharging wastewater directly
In May 2022, the EPA set cleanup guidelines (not regulatory levels) for PFAS chemicals released onsite or at offsite disposal facilities. EPA did this by setting Regional Screening Levels and Regional Remedial Management Levels for five PFAS compounds including PFOS and PFOA. The Screening Levels will be used by the EPA to investigate contamination and set cleanup values for soils and groundwaters contaminated with PFAS chemicals.
Finally, the EPA has acted over the last three years to up the level of regulatory oversight of PFAS in chemicals used at surface finishing facilities. The toxic release inventory (TRI) reporting program enforced as part of the Emergency Planning and Community Right to Know Act (EPCRA) now includes obligations for annual electronic reporting of the manufacture, processing, or “otherwise use” of more than 176 PFAS chemicals potentially present in surface finishing materials. In June 2021, EPA restarted the process to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), triggering requirements for spill reports and liability for past releases of PFAS onsite or offsite; the CERCLA rule is expected to be final this year. And, just last month, the EPA lowered the “health advisory” levels for PFOS and PFOA from 70 parts per trillion (ppt) to 0.004 ppt for PFOA and 0.02 ppt for PFOS, which will enable the EPA to drive down cleanup levels and wastewater discharge permit limits even lower.
Conclusion and Recommended Action
Navigating new and developing EPA regulatory programs is nothing new for the surface finishing industry. The PFAS action plan at the EPA will require more vigilance on behalf of finishing operations. New permitting requirements will eliminate much of the PFAS in use now, ACL values being reduced will allow for restrictions on wastewater discharge levels, revised “health advisories” are sure to increase liability for cleanup of PFAS releases, and annual reporting of PFAS use will take a lot of time away from other responsibilities of EHS managers at surface finishing operations. Do not be surprised if your surface finishing plant is subjected to a never-ending investigation for past and ongoing discharges of PFAS chemicals.
To prepare for this onslaught of existing and new regulatory programs, surface finishers may wish to adopt a three-step program:
Step No. 1. Investigate. Companies should investigate chemicals they have used or are using (especially from foreign suppliers) for the presence of PFAS and make a PFAS Chemical Inventory List. This will save time and effort.
Read: Cleaning, Pretreatment to Meet Medical Specs ISO 13485 or FDA 21 CFR820
Step No. 2. Reduce Risks. It is never too early to make changes to eliminate future liability. The company may want to sample soils in areas of known or suspected releases and to eliminate any PFAS chemicals used in production (if possible). This will help reduce the costs of technology upgrades for anticipated wastewater and air emission technology.
Step No. 3. Confidentiality. The attorney work product privilege can help manage costs and timing of response actions necessary in wake of the new regulations. As long as the investigation into PFAS chemical use and releases is part of a compliance audit program, it may be protected from disclosure until the company is properly situated to address the liability.
About the Author
Ethan is a partner at law firm Williams Mullen. He represents businesses and industries in environmental and health and safety legal matters. Visit williamsmullen.com.
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