On Friday, August 26, 2022, U.S. EPA announced its intent to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as CERCLA hazardous substances. U.S. EPA posted a pre-publication notice for the Federal Register listing, including Supplemental Information describing the basis for designation.
This rulemaking marks the first time U.S. EPA has used its authority under CERCLA section 102 to designate a hazardous substance. The Supplemental Information provided defines U.S. EPA’s rationale under each of the section 102(a) criteria for defining a hazardous substance.
If finalized, this rulemaking, which was anticipated under the U.S. EPA’s PFAS Strategic Roadmap, would have three direct effects:
- Require reporting for PFOA and PFOS releases when there is a release (as defined in CERCLA section 101(14)) above the reportable quantity. Until changed by rule, CERCLA section 102(b) defines the reportable quantity for any hazardous substance as 1 pound. Reporting requirements are defined in 40 CFR 302.6. If a reportable release occurs, EPCRA section 304 notification requirements also apply.
- During the sale or transfer of federally-owned, real property, in accordance with CERCLA section 120(h), Federal agencies are required to provide:
- notice if PFOA or PFOS was stored for one year or more, known to have been released,
- covenants warranting liability for the remediation of PFOA and PFOS has been or will be conducted by the United States.
- Require PFOA and PFOS to be regulated by the Department of Transportation as hazardous materials under the Hazardous Materials Transportation Act, in accordance with CERCLA section 306(a).
Indirect effects which benefit both U.S. EPA and CERCLA-delegated agencies include:
- Implementing CERCLA response actions without making imminent and substantial danger demonstrations, as is required currently.
- Requiring potentially responsible parties (PRPs) to address PFOA or PFOS releases that pose imminent and substantial endangerment to public health or welfare or the environment.
- Enabling cost recovery from PRPs for PFOA and PFOS cleanup actions.
Designation of PFOA and PFOS as hazardous substances also enables private parties that conduct cleanups consistent with the National Contingency Plan to recover PFOA and PFOS cleanup costs from other PRPs.
The August 26th announcement is just the latest step in U.S. EPA’s multi-pronged approach to PFOA, PFOS, and other per- and polyfluoroalkyl substances (PFAS), which includes development of Maximum Contaminant Levels, guidance on waste disposal practices, toxicity studies multiple PFAS analytes, and development of National Pollutant Discharge Elimination System (NPDES) rules for PFAS.
The proposed rule has raised concerns from lawmakers, advocacy groups, and industry groups regarding “unintended consequences” — such as increased costs for managing PFAS-related wastes for innocent third parties (such as potable water purveyors, or wastewater treatment facilities). The U.S. Chamber of Commerce stated that it and other trade groups are concerned that the proposed rule “would slow current cleanups, impose significant liability and compliance costs, and lead to unintended consequences, without effectively addressing the challenges presented by PFAS.” (NY Times, L. Friedman, August, 26, 2022).
As regulations continue to evolve, EnSafe’s PFAS experts are standing by to help evaluate current/legacy issues and plan ahead for potential future liabilities.