Earlier this week, the US Environmental Protection Agency (EPA) finalized a new rule designating two per- and polyfluorinated substances (PFAS), perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
These chemicals, two of a category designated “forever chemicals,” have often been used in industry and consumer products because of their ability to resist water, grease, and stains. Although no longer manufactured, they have also been used for firefighting and various industrial processes. The new rule will create increased reporting and notification requirements for releases of PFOA and PFOS into the environment and new responsibilities for cleanup of sites contaminated with these two chemicals.
EPA forecasted the new rule in its Strategic PFAS Roadmap, and the new rule also follows from EPA’s recent establishment of federal drinking water standards for six PFAS substances, discussed here. The new rule adds both PFOA and PFOS, including their salts and structural isomers, to the list of hazardous substances designated in Part 302 of CERCLA’s regulations, which triggers a number of reporting and cleanup requirements discussed below.
What is the New Rule’s Impact?
The new rule, which will go into effect 60 days after publication in the Federal Register, will result in several requirements related to the two substances. First, owners and operators of a vessel or facility will be required to report releases of PFOA and PFOS into the environment at or above one pound within a 24-hour period immediately to the National Response Center, state or Tribal emergency response commission, and local emergency responders. However, the person will not need to report past releases of PFOA or PFOS if they are not continuing as of the effective date of the rule. Within 30 days after a reportable release, owners and operators of a facility will have to submit a follow-up written report. Owners or operators of vessels or facilities will also be required to provide reasonable notice to potential injured parties by publication in local newspapers serving the affected area of any release of these substances.
Second, the new rule will require federal entities that transfer or sell their property to provide notification about the storage, release, or disposal of PFOA or PFOS on the property and include a covenant warranting that they have cleaned up any resulting contamination or will do so in the future, if necessary.
Third, under CERLA Section 306(a), the new listing requires the US Department of Transportation to regulate these substances as hazardous materials under the Hazardous Materials Transportation Act.
Finally, and perhaps most significantly, by designating these chemicals as hazardous substances under CERCLA, EPA can now require responsible parties to either clean up or pay for the clean-up of sites contaminated with PFOA or PFOS. So, while the law will not require entities to report past releases of PFOA or PFOS, those entities, and other potentially responsible parties, can still be required to perform or fund the investigation and clean-up of the resulting contamination.
EPA simultaneously issued a separate CERCLA enforcement discretion policy making clear that EPA will focus on enforcement efforts against parties that have “significantly contributed” to the release of PFAS chemicals into the environment, particularly parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties. EPA has indicated that it does not intend to pursue responsible parties where an evaluation of equitable factors does not support seeking response actions or costs under CERCLA. EPA generally does not plan to pursue the following parties:
- Community water systems or POTWs.
- Municipal separate storm sewer systems.
- Publicly owned or operated municipal solid waste landfills.
- Publicly owned airports.
- Local fire departments.
- Farms where biosolids are applied to the land.
EPA has reserved its right to pursue these entities when their actions or inactions have significantly contributed to, or exacerbated the spread of, significant quantities of PFAS contamination. For other types of responsible parties, EPA will consider the following factors in determining whether to exercise its enforcement discretion:
- Whether the entity is a state, local, or Tribal government.
- Whether the entity performs a public service role in providing certain services.
- Whether the entity manufactured PFAS or used PFAS as part of an industrial process.
- Whether, and to what degree, the entity is actively involved in the use, storage, treatment, transport, or disposal of PFAS.
The rule is expected to be published in the Federal Register shortly. If you have any questions about the rule, please reach out to a member of the firm’s Environmental group, which will continue monitoring developments in EPA’s regulation of PFAS.
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