Summary

The U.S. Environmental Protection Agency (EPA) finalized two of the most anticipated environmental regulations related to per- and polyfluoroalkyl substances—known as PFAS—in the past two weeks: listing of PFOA and PFOS as “hazardous substances” under the CERCLA Superfund program and establishing enforceable drinking water standards for six PFAS.

The Upshot

• EPA designated PFOA and PFOS, including their salts and structural isomers, as “hazardous substances” under the Superfund law.
• This is the first time EPA has directly listed specific compounds as “hazardous substances,” using its authority under CERCLA § 102(a), known as the Superfund law.
• Separately, under Safe Drinking Water Act authority, EPA established enforceable drinking water standards for six PFAS: PFOA, PFOS, PFHxS, PFNA, HFPO-DA, and certain PFAS mixtures.
• As a result of this final rule, public water systems must monitor for these PFAS by 2027, report such results publicly, and implement solutions to address exceedances by 2029.

The Bottom Line

The EPA’s highly anticipated environmental regulations are intended to facilitate environmental investigations and cleanups of certain PFAS and to set enforceable federal standards for addressing certain PFAS in drinking water.

Designation of PFOA and PFOS as Superfund Hazardous Substances

On April 19, 2024, the EPA issued a pre-publication notice of a final rule regulating two PFAS under the Superfund program. EPA designated 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). The targeted Superfund substances, PFOA and PFOS, are two of the most-studied PFAS and have largely been phased out of use and manufacture. The final adopted rule is largely consistent with the September 2022 proposed rule.

CERCLA provides for the investigation and cleanup of facilities as well as accidents, spills, and other emergency releases of “hazardous substances.” Thus, the regulatory designation as “hazardous substance” allows the federal government to use the myriad reporting, notification, and enforcement provisions under CERCLA to address PFOA and PFOS contamination. The rule is unprecedented, relying on a never-before used CERCLA § 102(a) giving EPA authority to designate a “hazardous substances” if “when released into the environment may present a substantial danger to the public health or welfare or the environment,” as opposed to relying on other statutes to define the approximately 800 “hazardous substances” under CERCLA. See EPA’s List of Hazardous Substances and Reportable Quantities, 40 CFR § 302.4.

One of the most significant impacts of this rule will be to allow EPA, as well as potentially responsible parties, to recover PFOA and PFOS cleanup costs under CERCLA’s enforcement regime under CERCLA § 107 (cost recovery) and CERCLA § 113 (contribution). EPA already has been using its CERCLA authority to preliminarily address PFOA and PFOS as “pollutants and contaminants” at various Superfund sites across the country subject to showing an “imminent and substantial danger,” but the final rule will not require such a showing and will allow EPA to use the full extent of its Superfund authority to address PFOA and PFOS.

The most immediate effect of the rule is additional reporting requirements under CERCLA § 103(a) and the Emergency Planning and Community Right-to-Know Act (EPCRA) § 304 to report any release of one pound or more of PFOA or PFOS. This is not the first reporting requirement for releases of PFOA and PFOS, but it does expand the threshold and breadth of reporting otherwise required under EPCRA’s Toxic Release Inventory requirements.

EPA also issued a guidance document regarding its PFAS Enforcement Discretion and Settlement Policy Under CERCLA, which clarifies the agency’s intent not to pursue certain parties such as farmers, municipal landfills, water utilities, municipal airports, and local fire departments where “equitable factors do not support seeking CERCLA cleanup or costs.” The proposed lack of enforcement against certain public entities is likely to shift enforcement and potentially liability to private entities.

The final rule will be effective 60 days after the date of publication in the Federal Register. See Federal Register Docket EPA-HQ-OLEM-2019-0341.

Drinking Water Standards for Six PFAS

On April 10, 2024, the EPA announced the final National Primary Drinking Water Regulation (NPDWR) for six PFAS: PFOA, PFOS, PFHxS, PFNA, HFPO-DA, and certain PFAS mixtures. The enforceable drinking water limits under the NPDWR are called Maximum Contaminant Levels (MCLs). EPA established individual MCLs for PFOA, PFOS, PFHxS, PFNA, and HFPO-DA. See Table 1. EPA also created drinking water limits for PFAS mixtures containing at least two or more of PFHxS, PFNA, HFPO-DA, and PFBS using a Hazard Index MCL. EPA also finalized health-based, non-enforceable Maximum Contaminant Level Goals (MCLGs) for these PFAS. The final rule is more expansive than the March 2023 proposed rule, adding individual MCLs for PFHxS, PFNA, and HFPO-DA.

As a result of this final rule, public water systems must monitor for these PFAS by 2027, report such results publicly, and implement solutions to address exceedances by 2029. If by 2029, the public water systems are in violation of the MCLs, the public water systems must take action to reduce levels of these PFAS and must provide public notification of the violation.

The final rule will be effective 60 days after the date of publication in the Federal Register. See Federal Register Docket EPA-HQ-OW-2022-0114.

Table 1 - Source: EPA, Final PFAS National Primary Drinking Water Regulation

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