On May 8, 2024, the U.S. Environmental Protection Agency published its Final Rule designating two per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) — as hazardous substances. The designation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) takes effect on July 8, 2024.
The Final Rule designating PFOA and PFOS as hazardous substances imposes several new reporting obligations. As discussed in greater detail here, the EPA's new rule requires the following:
- Reporting and notification of releases of PFOA or PFOS, their salts, or structural isomers above the reportable quantity (one pound within a 24-hour period);
- Notification by the U.S. Government when it transfers or sells certain properties of storage, release, or disposal of PFOA or PFOS on the property; and
- Regulation by the U.S. Department of Transportation (DOT) of PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act.
The Final Rule also gives the EPA significant new enforcement authority, including the ability to order potentially responsible parties to test, remediate, or pay for the cleanup of sites contaminated with PFOA or PFOS under CERCLA. Under CERCLA section 106(a), the EPA can take enforcement actions against PRPs when there may be an imminent and substantial endangerment from an actual or threatened release of PFOA or PFOS.
The Final Rule will also allow the EPA to use CERCLA to recover costs expended by EPA to clean up PFOA and PFOS contamination. CERCLA section 107 provides that liable parties are responsible for the costs associated with responding to hazardous substances. Liable parties under CERCLA include:
- Current owners and operators of facilities;
- Past owners and facility operators in place at the time of hazardous substance disposal;
- Any person who "arranged for disposal" of that facility's hazardous substances; and
- Any person that accepts hazardous substances for "transport to disposal or treatment facilities."
If a person is liable for a release of hazardous substances, that person may be responsible to pay for response costs, natural resource damages, and assessment costs, and costs pertaining to certain health assessment or health effects studies.
Entities that may be affected by the EPA's latest PFAS regulation include manufacturers, importers, processors, manufacturers, and downstream users of PFOA/PFOS and PFOA/PFOS products. Other potentially impacted businesses include waste management facilities and wastewater treatment facilities. Given the risk of CERCLA liability, these entities should closely monitor the EPA's enforcement of the new designation.
In a Memorandum issued on April 19, 2024, the EPA explained that it will exercise its enforcement discretion under CERCLA in matters involving PFAS. According to the EPA, it plans to focus on holding responsible entities who "significantly contributed to the release of PFAS contamination into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties."
The Memorandum also states that the EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including community water systems and publicly owned treatment works; municipal separate storm sewer systems; publicly owned/operated municipal solid waste landfills; publicly owned airports and local fire departments; and farms where biosolids are applied to the land farmers. According to the agency, the exemption is contingent on an entity's "full cooperation with EPA, including providing access and information when requested and not interfering with activities that EPA is taking or directing others to undertake to implement a CERCLA response action."
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