EPA Designates PFOA and PFOS as Hazardous Substances Under CERCLA

On April 19, 2024, the U.S. Environmental Protection Agency (EPA) announced the designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund). A pre-publication version of the Final Rule is accessible on EPA’s website.

CERCLA grants EPA the authority to designate hazardous substances if the substances “when released into the environment, may present substantial danger to the public health or welfare or the environment.” Currently, there are approximately 800 CERCLA hazardous substances.

Superfund Sites

CERCLA empowers government agencies and third parties to clean up sites impacted by hazardous substances and seek cost recovery from responsible parties, which could be required to cover the costs of the clean-up and provide alternative drinking water supplies, if necessary. Additionally, the designation of PFOA and PFOS as CERCLA hazardous substances allows for EPA investigation and enforcement at new Superfund sites, reevaluation of remedies at active Superfund sites, and reopening of closed Superfund sites.

EPA Enforcement

On April 19, 2024, the EPA also released a memorandum titled PFAS Enforcement Discretion and Settlement Policy Under CERCLA, which provides additional information on how EPA plans to exercise its enforcement discretion in CERLCA matters involving PFAS. The memorandum notes that EPA will focus on holding entities responsible that “significantly contributed to the release of PFAS into the environment” (e.g., parties that manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties) and does not intend to pursue entities where “equitable factors do not support seeking response actions or costs under CERCLA” (e.g., community water systems, publicly owned treatment works, municipal separate storm sewer systems, publicly owned/operated municipal solid waste landfills, publicly owned airports, local fire departments, and farms where biosolids are applied).

CERCLA Liability and Environmental Due Diligence

ASTM Standard E1527-21 for Phase I environmental site assessments (ESAs) is approved by EPA to satisfy the All Appropriate Inquiry (AAI) Rule in order to qualify for certain CERCLA liability protections. A critical component of the Phase I ESA process is to identify Recognized Environmental Conditions (RECs) resulting from releases of CERCLA hazardous substances and petroleum products. Previously, emerging contaminants such as PFAS could be assessed or evaluated during the Phase I ESA process as non-scope considerations and/or Business Environmental Risks (BERs). However, with PFOA and PFOS now designated as hazardous substances, releases of these two chemicals are now in-scope and must be considered when identifying RECs as part of the Phase I ESA process.

Reportable Quantities and Notification Requirements

Releases of hazardous substances at or above their reportable quantities (RQs) within a 24-hour period must be immediately reported to the National Response Center, unless the release is federally permitted. A default RQ of one pound has been established for PFOA and PFOS. Additionally, facilities must immediately notify the appropriate State or Tribal Emergency Response Commission (SERC or TERC) and Local or Tribal Emergency Planning Committee (LEPC or TEPC) of a hazardous substance release. EPA has developed a fact sheet that includes additional information on PFOA and PFOS release notification requirements.

Additional Information

If you have questions or would like to discuss how the EPA designation of PFOA and PFOS as CERCLA hazardous substances may impact your business, please reach out to one of Geosyntec’s PFAS subject matter experts: https://www.geosyntec.com/pfas