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EPA Designates PFOS and PFOA as Hazardous Substances under CERCLA

On April 19, 2024, the United States Environmental Protection Agency (EPA) made its latest move responding to the nationwide issue of per- and polyfluoroalkyl substances (PFAS). The EPA finalized a rule that designates two of the most pervasive PFAS—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The designation also includes the salts and structural isomers of PFOS and PFOA. The EPA first proposed the designations on September 6, 2022. The EPA’s promulgation of this final rule was coupled with the publication of a memorandum by the EPA announcing a new CERCLA Discretionary Enforcement Policy.

PFAS

            PFAS are a class of substances commonly called “forever chemicals” that have existed since the late 1930s. Beginning in the 1950s, manufacturers began using PFAS for a wide range of household and industrial purposes: soon the forever chemicals were everywhere. The United States military used PFAS in aqueous film-forming foam on bases and aircraft carriers to put out petroleum fires, while parents dressed their children in PFAS-coated rain gear and prepared meals on PFAS-coated cookware. PFAS are generally resistant to both heat and water; therefore, the properties that give them ubiquitous utility ensure that their natural degradation does not occur easily. According to a growing body of scientific evidence, PFAS are linked to adverse health impacts for humans.

What is the Goal of Designating PFOS and PFOA as Hazardous Substances?

CERCLA is primarily aimed at ensuring the prompt response to and remediation of releases of hazardous substances. 42 U.S.C. § 9601(22) defines a release as, “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).” Hazardous substances, as defined in U.S.C. § 9602(a) are “substances which, when released into the environment may present substantial danger to the public health or welfare or the environment.” Further, CERCLA was designed to ensure that the parties responsible for contamination bear the cleanup costs. To operationalize this objective, the EPA may compel a potentially responsible party (PRP) to take action to remediate a release, or the EPA may remediate the release themselves and seek response costs from PRPs after. CERCLA creates joint and several liability for PRPs. PRPs include: (1) current owners and operators of facilities; (2) past owners and operators in place at the time of hazardous substance disposal, (3) parties who arranged for

disposal of the facility’s hazardous substances, and (4) any person that transported hazardous substances to disposal or treatment facilities.

What Obligations Does the CERCLA Designation Impose?

            Under 42 U.S.C. § 9602(a), the EPA may designate additional substances as hazardous substances under CERCLA. When the EPA designates new hazardous substances, it must also establish reportable quantities for those hazardous substances. The EPA has set the reportable quantity for both PFOA and PFOS at 1 pound. Releases of PFOS and/or PFOA in quantities exceeding their reportable quantities must be reported to the National Response Center, the state or Tribal emergency response commission, and the local emergency responders. Facilities where releases occur have 24 hours to make these reports. Facility owners must also give reasonable notice to parties potentially injured by these releases through publication in the local newspapers. CERLCA also requires that federal entities selling or transferring real property give notice to the buyer or transferee of any storage, use, or disposal of PFOS and/or PFOA on the property, and the federal agency must guarantee that any resultant contamination has been remediated. The Department of Transportation must also list and regulate PFOA and PFOS as Hazardous Materials under the Hazardous Materials Transportation Act.

The CERCLA Discretionary Enforcement Policy

            EPA is afforded discretion in how it exercises its authority to implement response actions and seek response costs. By listing PFOS and PFOA as hazardous substances, the EPA seeks to hold the parties most responsible for the PFAS contamination liable for cleanup costs. The concurrent publication of the CERCLA Discretionary Enforcement Policy makes this goal clear: “EPA will focus on holding accountable those parties that have played a significant role in releasing or exacerbating the spread of PFAS into the environment.” The EPA will primarily focus on manufacturers of PFAS, those who use PFAS in their manufacturing, and industrial users of PFAS.  The EPA states that it will not seek response costs or pursue actions from PRPs where equitable factors don’t support the action.  Specifically. the EPA lists five PRPs that it does not intend to seek costs from or pursue actions against: (1) community water systems and publicly owned treatment works; (2) municipal separate storm sewer systems; (3) publicly owned/operated municipal solid waste landfills; (4) publicly owned airports and local fire departments; and (5) farms where biosolids are applied to the land. Further, pursuant to 42 U.S.C. § 9613(f)(2) and 42 U.S.C. § 9622(h)(4), the EPA may enter into settlements with these parties to provide them contribution protection from third-party claims.

What Happens Next?

            The EPA will publish the Final Rule in the Federal Register, and 60 days after publication the Rule will become effective.

The pre-publication version of the Final Rule can be found here

The EPA Discretionary Enforcement Policy can be found here

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