April 22, 2024
The U.S. Environmental Protection Agency (EPA) is taking historic action to designate two perfluorinated compounds as hazardous substances under one of the nation’s cleanup laws, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). The Agency announced the final rule in a press release on April 19. The rule designates perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as hazardous substances using, for the first time in the law’s history, a provision of CERCLA that authorizes the EPA Administrator to make such a designation.
PFOA and PFOS are among the most used, studied, and understood of the per- and polyfluoroalkyl substances (PFAS) class of compounds. PFAS compounds are highly stable due to the carbon-fluorine bond, are oil-, water-, and heat-resistant, and thus have been used extensively across industries (e.g., in cosmetics, textiles, food packaging, and fire fighting foam). Given their highly stable structure, PFAS do not break down easily, and persist in the environment and in animals, earning them the title of “forever chemicals.” Exposure to PFAS is associated with a number of adverse health effects, and limiting exposures is an increasingly important public health priority.
CERCLA applies to two categories of substances—those that are a “pollutant or contaminant” and those that are a “hazardous substance.” Both terms are specifically defined in the statute, and, depending on which definition is met, reporting requirements and EPA’s and states’ authorities under the law vary. Hazardous substances are defined in CERCLA § 101(14) by reference to designations under provisions of other environmental statutes (e.g., a hazardous waste under the Resource Conservation and Recovery Act, or a hazard air pollutant under the Clean Air Act) (42 U.S.C. § 9601(14)).
Historically, hazardous substances have earned that designation under CERCLA only through the application of the definition in § 101 and, thus, by reference to their status under other laws. EPA’s designation of PFOA and PFOS as hazardous substances is the first time the Agency is using its authority under CERCLA § 102, which authorizes the EPA Administrator to designate additional hazardous substances by regulation where “such elements, compounds, mixtures, solutions, and substances . . . when released into the environment may present substantial danger to the public health or welfare or the environment . . .” (42 U.S.C. § 9602(a)).
With the hazardous substance designation, parties will have to report leaks, spills, and other releases of PFOA, PFOS, or their salts or structural isomers under CERCLA sections 103 and 111(g) and section 304 of the Emergency Planning and Community Right-to-Know Act. This includes immediate notification to the National Response Center and state, tribal, and local emergency responders of PFOA and PFOS releases of one pound or greater within a 24-hour period. Further, EPA has greater authority to require investigation and cleanup of PFOA and PFOS releases and recover such costs from responsible parties.
Additionally, when federal property is transferred outside of federal ownership, the federal government must provide notice of PFOA or PFOS storage, release, or disposal on the property and commit to the cleanup of its PFOA and PFOS contamination in accordance with CERCLA § 120(h).
Concurrent with the final rule, EPA released a “PFAS Enforcement Discretion and Settlement Policy Under CERCLA” confirming that it intends to focus on parties who have significantly contributed to releasing PFAS chemicals into the environment. These parties include PFAS manufacturers, those who have used PFAS in the manufacturing process, federal facilities, and other industrial parties. The policy specifically addresses certain categories of parties that the Agency does not intend to pursue, such as farmers who have land-applied biosolids, municipal landfills and airports, water utilities, and local fire departments. The Agency has deemed that equitable factors do not support pursuing these parties, many of which are passive recipients of PFAS-containing material and provide a public service.
EPA will publish the final hazardous substance designation rule in the Federal Register in the coming weeks. The rule goes into effect 60 days after publication.