Two PFAS Are Now Hazardous Substances under CERCLA

The U.S. Environmental Protection Agency (EPA) continues to take significant action regarding the regulation of per- and polyfluoroalkyl substances or PFAS. On April 19, 2024, the EPA released its Final Rule designating PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which will allow EPA to use the full strength of CERCLA to address PFAS contamination.

The EPA’s new rule requires: (1) reporting and notification of releases of PFOA or PFOS, their salts or structural isomers above the reportable quantity (one pound within a 24-hour period); (2) notification by the U.S. Government when it transfers or sells certain properties of storage, release, or disposal of PFOA or PFOS on the property; and (3) regulation by the U.S. Department of Transportation (DOT) of PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act. The rule will be effective 60 days after publication in the Federal Register.

Key Provisions of the EPA’s Final Rule

CERCLA establishes broad Federal authority to address past, current, and future releases or threats of releases of hazardous substances and pollutants or contaminants, with the goal of promoting the timely cleanup of contaminated sites and ensuring parties responsible for contamination bear site cleanup costs. Under CERCLA, persons responsible for the release of hazardous waste may be held financially liable for remediation. The statute also authorizes entities who have taken actions to clean up hazardous waste sites to seek monetary contributions from other parties who are also responsible for the contamination.

According to the EPA, the CERCLA designation for PFOA and PFOS will enable EPA (and other agencies with delegated CERCLA authority) to address more sites, take earlier action, and expedite eventual cleanup. The agency also believes that the Final Rule’s notification requirements will also improve transparency around releases of PFAs.

Below are three key provisions of the Final Rule:

• Reporting Requirements: Pursuant to CERCLA sections 103 and 111(g), and accompanying regulations, and section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA), facilities must report releases of hazardous substances at or above the reportable quantity (RQ) within a 24-hour period. For PFOA and PFOS, a default reportable quantity (RQ) of one pound is assigned to these substances pursuant to CERCLA section 102(b). Therefore, consistent with CERCLA section 103(a), any person in charge of a vessel or facility is required, as soon as they have knowledge of any release (other than a federally permitted release) of any PFOA, PFOS, their salts or structural isomers in quantities equal to or greater than the RQ of one pound or more within a 24-hour period, to immediately notify the National Response Center (NRC) of such a release.

• Federal Agencies: CERCLA section 120(h) requires Federal agencies that sell or transfer real property to provide notice of the presence of hazardous substances in certain circumstances. CERCLA section 120(h) also requires Federal agencies to provide a covenant warranting that “all remedial action necessary to protect human health and the environment with respect to any [hazardous substances] remaining on the property has been taken before the date of such transfer, and any additional remedial action found to be necessary after the date of such transfer shall be conducted by the United States.”
• Department of Transportation: CERCLA section 306 requires the Department of Transportation to regulate any substance added to the CERCLA list as hazardous materials in accordance with the Hazardous Materials Transportation Act (HMTA).

The Final Rule identifies seven broad categories of entities that may potentially be affected by its provisions: (1) PFOA and/or PFOS manufacturers (including importers and importers of articles that contain these substances); (2) PFOA and/or PFOS processors; (3) manufacturers of products containing PFOA and/or PFOS; (4) downstream users of PFOA and PFOS; (5) downstream users of PFOA and/or PFOS products; (6) waste management facilities; and (7) wastewater treatment facilities.

PFAS Enforcement Under CERCLA

The rule designating PFOA and PFOS as hazardous substances gives the EPA significant new enforcement authority, including the ability to order potentially responsible parties to test, remediate, or pay for the cleanup of sites contaminated with PFOA or PFOS under CERCLA. However, the agency has indicated that it plans to focus enforcement on parties that have significantly contributed to the release of PFAS into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.

In connection with the pre-publication of its final rule, the EPA also issued a memo, entitled “PFAS Enforcement Discretion and Settlement Policy Under CERCLA.” As stated in the memo, “EPA is issuing this PFAS Enforcement Discretion and Settlement Policy Under CERCLA regarding enforcement considerations that will inform EPA’s decisions to pursue or not pursue potentially responsible parties (PRPs) for response actions or costs under CERCLA to address the release or threatened release of PFAS.” Per the memo, the EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, and the memo specifically identifies several entities that the EPA will not target, including farmers, municipal landfills, water utilities, municipal airports, and local fire departments.

Big Picture on EPA PFAS Regulation

The EPA’s actions over the past month constitute the most significant action by EPA regarding PFAS in years. As discussed in greater detail here, the agency has finalized its landmark National Primary Drinking Water Regulation (NPDWR), which establishes national drinking water standards for six PFAS. The EPA also recently updated “Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances,” which is intended to help decision-makers who need to identify the most effective means for destroying or disposing of PFAS-containing materials and wastes. Earlier this year, the EPA finalized a rule that prevents companies from starting or resuming the manufacture or processing of 329 PFAS and announced the addition of seven PFAS to the list of chemicals covered by the Toxics Release Inventory (TRI).

Additional regulatory action on PFAS is likely in the coming month, particularly with a potential leadership change on the horizon following the November election. The attorneys of Scarinci Hollenbeck’s Environmental Law Group will continue to monitor the EPA’s actions to address PFAS and post updates as they become available.