Effective as of yesterday, July 8, 2024, two widely used per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) are deemed hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). By designating PFOA and PFOS as hazardous substances, EPA may now invoke the full strength of CERCLA to address PFAS contamination, which may have wide-ranging consequences for manufacturers and users of PFAS.

When EPA issued a pre-publication notice of the final rule earlier this year, the agency also released a memorandum detailing the enforcement considerations that will inform its decisions regarding whether or not to pursue potentially responsible parties (PRPs) under CERCLA to address the release or threatened release of PFAS. EPA intends to exercise its CERCLA enforcement authority to pursue those it deems “major PRPs” who have significantly contributed to the release of PFAS into the environment, including major manufacturers and users of PFAS, federal facilities that are significant sources of PFAS, and other industrial parties.

Addressing exposure to PFAS is on EPA’s list of six National Enforcement and Compliance Initiatives (NECIs) for fiscal years 2024 – 2027. The NECIs are EPA’s designated national program priorities on which it focuses enforcement and compliance assurance resources based on what EPA deems to be the most serious environmental violations. EPA’s 2024 – 2027 cycle goals for PFAS are to achieve site characterization for contaminated sites, control ongoing releases that pose a threat to human health and the environment, ensure compliance with permits and other agreements to prevent and address PFAS contamination, and address endangerment issues as they arise. EPA anticipates initiating enforcement actions starting in 2025.

Because PFAS are ubiquitous in the environment, with sources ranging from common household consumer products to major industrial plants to airports, the promulgation of the new rule suggests that prior CERCLA sites that have long been closed may be reopened because PFAS was not part of the past remediation and that those targeted for enforcement may be expected to take the lead on new, potentially extensive and lengthy cleanups.

Hazardous Substances and CERCLA Enforcement

Under § 102(a) of CERCLA, EPA can designate substances that “may present substantial danger to public health or welfare or the environment” as hazardous substances.[1] This designation unlocks a number of CERCLA enforcement mechanisms that would have been otherwise unavailable.

Prior to designation, PFOA and PFOS were only subject to EPA’s powers under CERCLA as “pollutants or contaminants,” which are more circumscribed. The most significant, immediate effects of the designation include:

• Any person in charge of a facility that identifies a release of PFOA or PFOS above the minimum “Reportable Quantity”—one pound currently, by statute—must report that release to federal, state, Tribal, and local authorities.[2]
• EPA can address releases immediately even if they do not rise to the level of “immediate and substantial danger.”[3]
• EPA can recover costs of any EPA-conducted response or remediation efforts[4] or compel PRPs to conduct response or remediation efforts themselves.[5]

PFAS Enforcement Discretion and Settlement Policy

According to EPA’s stated enforcement policy, EPA will focus enforcement actions on so-called “major PRPs”—parties that have played a significant role in releasing or exacerbating the spread of PFAS into the environment, such as manufacturers of PFAS or those that have used PFAS in their manufacturing processes.

In deciding whether to initiate an enforcement action against a specific PRP, EPA will consider the following equitable factors:

• Whether the entity is a state, local, or Tribal government, or works on behalf of or conducts a service that otherwise would be performed by a state, local, or Tribal government.
• Whether the entity performs a public service role in:
  • Providing safe drinking water;
  • Handling of municipal solid waste;
  • Treating or managing stormwater or wastewater;
  • Disposing of, arranging for the disposal of, or reactivating pollution control residuals (e.g., municipal biosolids and activated carbon filters);
  • Ensuring beneficial application of products from the wastewater treatment process as a fertilizer substitute or soil conditioner; or
  • Performing emergency fire suppression 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.

EPA’s Office of Enforcement and Compliance Assurance (OECA) has stated that it does not intend to pursue entities where the equitable factors listed above do not support enforcement actions, including, but not limited to:

• Community water systems and publicly owned treatment works (POTWs);
• Municipal separate storm sewer systems (MS4s);
• Publicly owned/operated municipal solid waste landfills;
• Publicly owned airports and local fire departments; and
• Farms where biosolids are applied to the land.

Finally, EPA’s enforcement policy addresses how non-“major” PRPs can further limit their exposure to CERCLA enforcement risk related to PFAS. First, EPA can, in settlement agreements with “major PRPs,” secure a waiver of rights providing that the major PRP cannot pursue contribution claims against certain non-parties to that settlement. Second, the EPA can independently enter into settlement agreements with parties where the equitable factors do not support enforcement actions, resolving any potential liability and protecting the non-“major” PRP from third-party contribution actions related to matters addressed in the settlement agreement.

Background

PFAS, also known as “forever chemicals,” have been manufactured and used in a variety of industries since the 1940s. Historically, PFAS have been used in a wide range of consumer products, including carpets, clothing, fabrics for furniture, packaging for food, and cookware. PFAS also historically have been important components in firefighting foams used at airfields, refineries, and military bases and in a host of industrial processes.

PFOA and PFOS are two of the most widely used PFAS, and thus many sites may be contaminated with high levels of PFOA and PFOS. Further, PFAS are generally persistent and mobile in the environment, meaning that historical releases may still be present and detectable at certain sites.

This final rule is the latest EPA action concerning PFAS under the agency’s 2021 PFAS Strategic Roadmap.

Key Takeaways

EPA is continuing to take steps to address concerns surrounding PFAS—in recent months it has set its first-ever limits on PFAS levels in drinking water under the Safe Drinking Water Act and finalized a rule requiring certain reporting and recordkeeping for PFAS under the Toxic Substances Control Act.

Entities that have manufactured PFOA and PFOS or have used them in their manufacturing processes, and therefore could be considered “major PRPs” under EPA’s enforcement policy, should be prepared for increased scrutiny, as this designation will allow the EPA to be more aggressive in its investigation and cleanup efforts.

In the near term, sites that are currently investigating or remediating releases or threatened releases of hazardous substances may be required to do additional sampling for PFOA and PFOS. If PFOA or PFOS is found at these sites, EPA may impose additional remediation requirements.

Previously closed Superfund sites may also be required to collected additional data on PFOA and PFOS levels pursuant to EPA’s five-year review process.[6] If either substance is detected, EPA may require additional remedial measures.

Parties that have previously entered into consent decrees with EPA over cleanups at polluted sites may be affected by this designation. Reopener provisions are ubiquitous in these consent decrees and indeed are required in all but a few circumstances under the 1986 amendments to CERCLA.[7] These provisions allow EPA to reopen settlements and cleanups, for example, when previously unknown site conditions come to light or when new or emerging contaminants of concern arise. Though the EPA has not made any official comment regarding whether it will invoke these reopeners, EPA’s aggressive stance toward PFAS suggests that EPA could use any of the tools at its disposal.

Conclusion

EPA’s designation of PFOA and PFOS as hazardous substances under CERCLA is expected to lead to increased scrutiny of entities that have manufactured or used these substances in their manufacturing processes. EPA’s regulatory agenda regarding PFAS in general indicates that EPA may initiate enforcement actions against such entities, require additional testing at current and past cleanup sites, and could reopen consent decrees to require additional remediation. Entities that may be affected by this rule should prepare for EPA’s increased focus on these chemicals.

MoFo’s environmental attorneys regularly advise clients on compliance with CERCLA and related regulations and are prepared to assist entities that may be affected by the designation of PFOA and PFOS as hazardous substances under CERCLA.

[1] 42 U.S.C. § 9602(a) (2024).

[2] 42 U.S.C. § 9603(a).

[3] 42 U.S.C. § 9604(a)(1).

[4] 42 U.S.C. § 9607(a)(4)(A).

[5] 42 U.S.C. § 9606(a).

[6] See Superfund: Five Year Reviews, EPA.

[7] 42 U.S.C. § 9622(f)(6)(A).

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