Typically when considering the regulatory risk presented by per- and polyfluoroalkyl (“PFAS”) compounds, businesses think of the regulation of drinking water, groundwater, and consumer products. However, there is an increased awareness that air emissions are potentially a significant pathway for PFAS to enter the environment. While PFAS air emissions are not yet regulated at the federal level, three states (Michigan, New Hampshire, and New York) have enacted or have proposed restrictions on PFAS in air emissions through regulations and/or air permits, a trend likely to continue at both the state and federal levels under the Biden administration.
The following is a summary of the restrictions that have been implemented or proposed with respect to PFAS in air emissions:
New York (Proposed)
24-hour limit: 0.05 µg/m3
Annual limit: 0.042 µg/m3
A. Specific Regulatory Information
Regulation of PFAS air emissions is poised to have a potentially onerous and costly effect on impacted businesses. Below are some considerations that may be applicable to your business.
While no federal laws currently regulate PFAS air emissions, recent activity at the federal level signals that potentially significant and far-reaching changes could be coming soon to major federal environmental statutes, including the Clean Air Act (“CAA”).
A. PFAS Action Act of 2021
The PFAS Action Act of 2021 was introduced in the House of Representatives, and it encourages the EPA to take regulatory action related to PFAS with respect to, among other things, air pollution (see Section 8). Specifically, the Act would require that the EPA issue a final rule adding PFOA and PFOS to the list of hazardous air pollutants under the CAA within 180 days of the passage of the Act. Further, within five years after passage of the Act, the EPA would be required to make a determination as to whether to add other PFAS compounds to the list of hazardous air pollutants.
B. National Defense Authorization Act for Fiscal Year 2020
In this legislation, the Secretary of Defense shall require that PFAS chemicals be incinerated with the requirements of the CAA, including controlling hydrogen fluoride. Please refer to Section 330 for additional information. While incineration procedures are not actual air emission standards, this congressional attention to PFAS air issues may eventually lead to other federal regulations in the PFAS area.
C. EPA’s Emissions Test
In 2021, EPA issued the first air emissions test method (OTM-45) designed specifically to sample PFAS materials. The promulgation of an EPA-approved test method will allow state-regulated businesses to more efficiently and reliably measure PFAS emissions, and may serve as the cornerstone of any federally-issued regulations of PFAS air emissions under the CAA or otherwise.
D. EPA’s Budget
EPA has included research for PFAS air issues with several states in its Fiscal Year 2021 budget. Please see page 125 for additional information.
In addition to the enacted and proposed regulations discussed in Section I, there have also been some legal and permitting actions that provide useful insights into how regulatory agencies may approach PFAS in air emissions.
A. Consent Decree
Signed on February of 2019, the State of North Carolina et al. v. The Chemours Company FC, LLC Consent Decree specifically addresses PFAS air emission issues. Under the Consent Decree, Chemours is obligated to undertake certain actions and achieve certain results with respect to PFAS compounds, including the following:
One important point to note is that Chemours was required to install control technology and demonstrate that it met its emissions control obligations, even though North Carolina did not have any regulatory limits for PFAS in air emissions when the Consent Decree was signed. It also signals that at least one state agency views thermal oxidizers as a viable means of controlling PFAS emissions.
It is worth noting that thermal oxidizers are not the only form of PFAS control equipment that have been approved. Some facilities have installed other control equipment including carbon absorption and wet scrubbers with packed bed fiber filters in businesses such as “Teflon manufacturing facilities, PFAS containing coating facilities, chrome platers, landfills, and wastewater treatment plants.”
B. Draft Air Permit: Thermal Oxidizer
In New Hampshire, a fabric coating facility also installed thermal oxidizers, in part, to reduce PFAS air emissions. If your company is interested in reviewing the specific details, the March 2019 permit application is here.
C. Chrome Plating Operations
Beginning in the 1950’s, PFAS for fume suppression was used in the chrome plating industry. In 2012, EPA phased out PFOS materials from chrome plating fume suppressants. Additionally, in 2016, California banned the use of PFOS in chrome plating fume suppressants. Other states, such as Michigan, have conducted studies regarding this issue. Given the level of regulatory attention on chrome plating businesses, entities that currently conduct chrome plating work should evaluate their potential PFAS air emissions in anticipation of potential regulatory action.
The regulation of PFAS in air emissions is beginning to roll out at the state level, and is expected to increase over the next few years as further research is conducted on potential health impacts, and as regulators develop a deeper understanding of the nature of PFAS concentrations in facility emissions.