EPA Designates Two PFAS Chemicals as CERCLA Hazardous Substances

On April 19, 2024, the U.S. Environmental Protection Agency (“EPA”) finalized a new rule designating two widely used per- and polyfluoroalkyl substances (“PFAS”) chemicals—perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”), including their salts and structural isomers—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”).

This action builds on EPA’s recently finalized PFAS drinking water standards and represents the latest step in a series of related measures under EPA’s PFAS Strategic Roadmap.

PFAS have been widely used in industry and consumer products and have come under rigorous scientific and public scrutiny in recent years due to their potential for adverse health impacts.

What Does EPA’s New Rule Entail?

CERCLA is designed to address site-specific contamination in the environment, focusing on assessing the nature, extent, and risk to human health and the environment caused by releases or potential releases. The statute affords EPA broad discretion in deciding how to respond to such releases. CERCLA also includes cost-shifting mechanisms and liability provisions to ensure that cleanups are primarily funded by potentially responsible parties (“PRPs”) rather than relying solely on the Superfund Trust Fund. These provisions encourage PRPs to take responsibility for environmental remediation.

The new rule designating PFOS and PFOA as hazardous substances under CERCLA will require:

• Entities to immediately report releases of PFOA and PFOS that meet or exceed a reportable quantity of one pound in a 24-hour period to the National Response Center, State, Tribal, and local emergency responders. Entities do not need to report past releases of these chemicals if they are not continuing as of the effective date of the rule.
• Federal entities that transfer or sell their property to provide notice about the storage, release, or disposal of PFOA or PFOS on the property and warrant that any resulting contamination has been cleaned up, or that additional cleanup will occur in the future, if needed.
• The U.S. Department of Transportation to list and regulate these substances as hazardous materials under the Hazardous Materials Transportation Act.
• Owners or operators of any vessel or facility to inform potential injured parties of any release of these substances by placing notices in local newspapers that serve the impacted region.

Designation of PFOA and PFOS as CERCLA hazardous substances does not automatically require any investigation or cleanup actions, but EPA can now compel responsible parties to remediate sites contaminated with these chemicals or reimburse EPA for the full cost of remediation.

According to EPA Administrator Michael S. Regan, the new rule will allow the agency to “address more contaminated sites, take earlier action, and expedite cleanups.” It will also increase transparency around releases of these substances and hold polluters accountable for cleanup efforts.

EPA’s recent regulation establishing maximum contaminant limits (“MCLs”) for certain PFAS under the Safe Drinking Water Act complements this rule because it affects how remedies are selected for sites with PFOA and PFOS contamination. Remedy selection under CERCLA requires the consideration of certain factors, such as protectiveness and compliance with applicable or relevant and appropriate requirements (“ARARs”). Federal MCLs are part of the ARARs for groundwater, so CERCLA remedy selection for PFOA and PFOS will align with these MCLs.

Who Will Be Impacted by the Rule? 

The rule will have broad implications for any entity whose operations or property may be impacted by PFAS, including most businesses and property owners nationwide due to the widespread presence of PFAS.

In addition to the final rule, EPA issued a separate CERCLA enforcement discretion policy outlining how the agency will exercise its enforcement discretion under the rule. EPA’s guidance states that it will focus enforcement against parties that have significantly contributed to the release of PFAS chemicals into the environment, including entities that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial entities.

In its policy, EPA also stated that it does not intend to pursue entities “where equitable factors do not support seeking response actions or costs under CERCLA.” These entities include community water systems, publicly owned treatment works, municipal separate storm sewer systems, publicly owned/operated municipal solid waste landfills, publicly owned airports and local fire departments, and farms where biosolids are applied to the land. However, the policy does not preclude private parties from pursuing these entities for cost recovery or contribution. 

How Does the New CERCLA Rule Affect Regulation Under the Resource Conservation and Recovery Act (“RCRA”)?

RCRA and CERCLA are distinct, but complementary statutes that address different aspects of hazardous waste management. RCRA focuses on the federal regulation and management of active hazardous waste facilities and governs the disposal of solid waste and hazardous waste. Meanwhile, CERCLA deals with the response to releases or threatened releases of hazardous substances at abandoned or uncontrolled hazardous waste sites.

The PFOA and PFOS hazardous substance designation under CERCLA does not automatically classify waste contaminated with these chemicals as RCRA hazardous waste or a RCRA hazardous constituent. In other words, the new CERCLA designation does not automatically impose RCRA’s regulatory framework on the same substances.

But EPA has proposed two rules under RCRA to regulate PFAS. The first would add nine PFAS compounds to the list of hazardous constituents under RCRA, while the second would expand the definition “hazardous waste” as it applies to corrective action at permitted hazardous waste facilities to allow for more types of waste to qualify for the label. 

The lawyers at Bick Law LLP will be monitoring developments around the new PFAS CERCLA regulation.