On April 19, 2024, the U.S. Environmental Protection Agency (EPA) finalized a first-of-its-kind rule designating two PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), along with their salts (i.e., their solids) and structural isomers (i.e., their relevant variants), as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). See Pre-Publication Version, 40 C.F.R. 302. This action comes just weeks after the EPA announced a final rule establishing National Primary Drinking Water Regulations (NPDWR) for PFAS chemicals and issued interim guidance on destroying and disposing of certain PFAS and PFAS-containing non-consumer product materials.
By listing PFOA and PFOS as hazardous substances under CERCLA—also known as Superfund—facilities will be required to report releases of PFOA or PFOS at or above the reportable quantity within a 24-hour period, and regulators will have increased authority to order cleanups and recover costs for PFAS contamination. This is EPA’s first-ever use of section 102(a) of CERCLA to add substances to the existing statutory list of hazardous substances via rulemaking.
The new rule will become effective 60 days after it is published in the Federal Register.
At the same time, EPA also issued a separate CERCLA enforcement discretion policy, which seeks to clarify that EPA will focus its enforcement action on parties that significantly caused PFAS releases, such as manufacturers and other industrial users, and will not seek response actions or costs from farmers, municipal landfills, water utilities, municipal airports and local fire departments. The policy aims to address concerns raised with respect to so-called “passive receivers” of PFAS—entities like community water systems, publicly owned treatment works and publicly owned/operated municipal solid waste landfills—that through the designation, could become subject to burdensome response costs under CERCLA’s strict, retroactive and joint-and-several liability scheme.
CERCLA Hazardous Substance Designation
Under the rule, EPA is designating PFOA and PFOS as CERCLA hazardous substances under CERCLA Section 102(a).
In addition to defining hazardous substances by references to other environmental statutes—sections 311 and 307(a) of the Clean Water Act, section 112 of the Clean Air Act and section 3001 of the Resource Conservation and Recovery Act—CERCLA section 102(a) gives EPA authority to evaluate and designate substances as hazardous if those substances “present substantial danger to public health or welfare or the environment.” As noted above, this is the first time that the EPA has exercised this authority, and the agency cited, among other justifications, its June 2022 interim updated health advisories for PFOA and PFOS pursuant to the Safe Drinking Water Act to support its decision.
EPA also went beyond the substantial-danger evaluation and performed a “totality of the circumstances” analysis that “weighed the advantages and disadvantages of designation, including quantitative and qualitative benefits and costs.” This separate, discretionary analysis (which was likely completed to ward off legal challenges relating to EPA’s consideration of costs) concluded that the advantages of designation outweighed the disadvantages because “designation best serves CERCLA’s two primary objectives—the timely cleanup of contaminated sites and holding polluters accountable for contamination they caused.”
Ramifications of the Listing
Under the rule, entities will be required to report, within 24 hours, releases of PFOA and PFOS that meet or exceed the reportable quantity (RQ), which is set at one pound—much lower than the RQ for most other CERCLA hazardous substances. Release reports must be provided to the National Response Center at EPA, state and/or tribal emergency response commissions, and the local and/or tribal emergency response entity for the affected area.
EPA cites industries to be potentially affected by the direct outcomes of the designation as including oil and gas extractors, metal ore mining operations, water and sewage utilities, textile and leather manufacturers, paper manufacturers and commercial printers, petroleum and chemical manufacturers, machine and electronics manufacturers, and manufacturers and users of firefighting foams.
With PFOA and PFOS now covered as hazardous substances, releases of those chemicals can be addressed by EPA response actions—without first establishing that the release may present an imminent and substantial danger—and using its CERCLA enforcement authority. CERCLA affords EPA broad discretion as to whether or how to respond to a release: EPA may conduct the response itself and seek to recover its costs from the potentially responsible parties (PRPs) in a subsequent cost-recovery action; it can compel PRPs to perform the cleanup themselves through either administrative or judicial proceedings; or it can enter into a settlement with PRPs to perform all or portions of the work.
In addition to direct EPA enforcement actions and the industries cited as potentially directly affected by the designation, the rule is also expected to affect other PRPs via private party litigation and claims for natural resource damages (NRDs). PRPs can seek cost recovery or contribution from other PRPs for response actions, and the designation also has the potential to result in NRD claims with respect to PFOA and PFOS.
The CERCLA enforcement discretion policy announced by EPA may help to mitigate (but not eliminate) concerns from certain passive receivers, such as publicly owned and operated water and sewage utilities and landfills. Although bipartisan legislative relief for some of these entities is being considered in Congress, the ultimate enactment of proposed legislation remains far from certain.
Practical Considerations
Once effective, the designating of PFOS and PFOA as CERCLA hazardous substances will have significant additional effects beyond the rule itself that should be evaluated by affected parties:
Real Estate and Transactional Due Diligence
PFOS and PFOA—now hazardous substances—must be considered as part of Phase I Environmental Site Assessments to meet the “All Appropriate Inquiries” standard in connection with establishing certain CERCLA liability defenses.
State-Level CERCLA Analogs
Parties with operations in states with statutory schemes modeled after CERCLA—such as Minnesota’s Environmental Response and Liability Act or “MERLA,” and Wisconsin’s Spills Law—will need to consider the state-level implications of the PFOA and PFOS designations at the federal level.
Superfund Site Impacts
The designation of PFOA and PFOS could result in new Superfund sites, disrupt and add complexity to ongoing Superfund site cleanups (as well as their existing cost allocations) and result in the reopening of previously closed Superfund sites.
Waste Disposal Limitations
Landfills and other waste disposal facilities may enact policies designed to limit their liability for potentially PFAS-contaminated waste, which could further limit the field of available disposal facilities for such wastes.
Future Section 102(a) Designations
Finally, EPA may use this designation as a model for future section 102(a) review and designation of emerging contaminants—both additional PFAS as well as non-PFAS substances.
This is the first of several legal updates discussing the effects of EPA’s designation of PFOA and PFOS as hazardous substances under CERCLA. Watch for more in the coming weeks.
Fredrikson’s Environmental Law Group is at the forefront of tracking and anticipating developments in PFAS regulations and liabilities, at both the state and federal level, across a wide range of areas, including remediation, product stewardship, solid and hazardous waste disposal, water discharges and air emissions. We advise and assist clients on PFAS compliance issues through seminars, legal updates and informal discussions. The team brings decades of experience in environmental law in a variety of contexts and across a broad scope of industries and includes members with backgrounds in government service and public policy, environmental consulting and as in-house counsel.
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