On Wednesday, May 8, 2024, the U.S. Environmental Protection Agency (U.S. EPA) published its Final Rule entitled Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances in the Federal Register, which starts the 60-day clock for the rule to be final and effective. This means that U.S. EPA has taken the step of moving forward with a final rule (the “Rule”), which would designate two of the most widely used and encountered PFAS substances – PFOA and PFOS – as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) often called “Superfund.”
The expansive presence of PFAS in manufacturing processes across industries as well as the federal and state regulations emerging to investigate and limit their manufacture, presence, and disposal have been well discussed by Calfee over the past few years. From our preview of proposed new notification and reporting requirements under the Toxic Substances Control Act (TSCA) and the Toxic Release Inventory (TRI) to the issuance of the final TSCA reporting rule last September, steps forward on U.S. EPA’s PFAS Strategic Roadmap have lead us to this point where U.S. EPA has accelerated the issuance of new rules to classify PFAS substances within the currently regulatory schemes.
On April 10th, U.S. EPA announced its final PFAS maximum contaminant levels (MCL) rule for drinking water, establishing MCLs at 4.0 parts per trillion for PFOS and PFOA, and 10 parts per trillion for three other PFAS compounds. On February 8th, U.S. EPA issued a proposed regulation that would expand its authority to require cleanup of PFAS under the Resource Conservation and Recovery Act. Wednesday’s Rule announcement, however, implicating CERCLA regulations, could bring broad-reaching impacts to the industry in the very near term.
CERCLA and What the New Rule Will Require
CERCLA was enacted in 1980 to address public concern about abandoned hazardous waste sites. The Act authorizes the federal government to assess sites, clean up contaminated sites, and respond to releases or threatened releases of hazardous substances. There are over 800 hazardous substances designated under CERCLA. A substance being designated as hazardous under the statute gives rise to a requirement to report releases at or above a certain quantity and enables EPA to order actions by and recover response costs from Potentially Responsible Parties (PRPs).
This new Rule would amend Section 302 of CERCLA to designate PFOA and PFOS, including their salts (solids) and structural isomers (relevant variants), to the list of hazardous substances. After the Rule takes effect, entities will be required to report releases of PFOA and PFOS that meet or exceed a reportable quantity of one pound in a 24-hour period to the appropriate regulatory agencies, including the National Response Center. The reportable quantity for PFOA and PFOS is significantly lower than the reportable quantity for many other hazardous substances, often set at 100 pounds or more.
The Rule also authorizes EPA to order investigations and cleanups of PFOA and PFOS and to recover such costs from PRPs. Private parties that conduct cleanups consistent with the National Contingency Plan may also seek recovery of cleanup costs of these PFAS compounds and seek contributions from other responsible parties.
Consequences of the Rule
In addition to the introduction of PFAS into CERCLA’s regulatory scheme and those consequences discussed above, the Rule also would lead to these significant developments:
- Increased requests for sampling and testing for PFOA and PFOS at existing Superfund sites and the potential reopening of existing Superfund sites if EPA determines, during a five-year lookback period, that previously completed remedial actions are no longer protective of human health and the environment.
- Federal entities that transfer or sell a property will need to provide notice about the storage, release, or disposal of PFOA or PFOS on the property and to guarantee that any PFOA or PFOS contamination has been cleaned up or, if needed, that additional cleanup will occur in the future.
- The Rule will require the Department of Transportation to list and regulate these two substances as hazardous materials under the Hazardous Materials Transportation Act.
Importantly, the designation of these two PFAS substances as CERCLA hazardous substances means that those chemicals must now be considered as part of a Phase I Environmental Site Assessment under ASTM Standard E1527-21 for purposes of meeting the “all appropriate inquiry” (AAI) standard.
Prospective purchasers of real estate must comply with the AAI rule to qualify for one of CERCLA’s innocent purchase defenses to liability under the statute. This could include having to conduct a limited Phase II subsurface investigation involving sampling and testing for PFAS compounds in soil, vapor, or groundwater to determine the presence or absence of PFOS and PFOA prior to acquiring the property. While ASTM typically takes some length of time for official revisions and issuance of revisions to the standard, once the new Rule takes effect (approximately July 8, 2024 - 60 days from official publication in the Federal Register), we recommend that those conducting environmental due diligence
on potential real estate acquisitions consider PFAS as part of the Phase I investigations, in addition to paying closer attention to the use of fire suppression systems and fire-fighting incidents on the property, which are known to implicate PFAS.
The CERCLA PFAS Rule will impact across industries, including those that manufacture PFOA and PFOS or manufacture products containing those compounds, downstream users of PFOS and PFOA, waste management facilities, wastewater treatment facilities, aviation operations, paper mills, and operations that use polymers, photographic film material, pesticides as well as some medical devices, landfills, metal plating facilities, and textile coating operations.
In an attempt to balance the potentially far-reaching consequences of the Rule, U.S. EPA simultaneously issued a PFAS Enforcement Discretion and Settlement Policy Under CERCLA with the Rule. In this policy, EPA represents that it will focus its enforcement on parties who “significantly contributed” to the release of PFAS chemicals into the environment. The policy states that “EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including farmers, municipal landfills, water utilities, municipal airports, and local fire departments.” While this could provide some limited assurance to companies looking to avoid the extreme costs from federal CERCLA enforcement, this discretion policy would not protect from private cost recovery actions and state-level enforcement, as at least eight states have
added PFAS to their state hazardous substance regulations (AK, DE, MA, NJ, NY, RI, WA, and VT).
Calfee's Environmental lawyers are available to provide additional information or assistance dealing with emerging PFAS regulations.
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