New U.S. Environmental Protection Agency (EPA) regulations, which went into effect on July 8, 2024, designate perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and their salts and isomers as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. 

The rule imposes new reporting requirements and empowers federal and state regulators to mandate investigations and cleanups of PFOA and PFOS-contaminated sites. Additionally, it allows for the pursuit of financial accountability from responsible parties to cover the cleanup costs.

A coalition of industry interests is already challenging the rule, but as it stands, the designation raises the specter of crushing liability for landowners, businesses, and public utilities.

Reporting Requirements 

The new regulations mandate that facilities report releases of PFOA and PFOS, including their salts and isomers, that meet or exceed the designated reportable quantity (RQ) of one (1) pound each. CERCLA defines "facility" and "release" broadly, encompassing activities such as stormwater conveyance and waste hauling. Once the one-pound threshold is reached, the person in charge of the facility, such as the owner or manager, must follow a series of reporting requirements. This process begins with multi-agency notification and concludes with the submission of written reports.

Legal Considerations 

For over half a century, unchecked PFAS manufacturing and use have resulted in extensive contamination across the country. For environmentalists, the new designation marks a significant step toward addressing decades of unmitigated pollution. However, for landowners, businesses, federal agencies, and public utilities, it signifies billions of dollars in potential liability.

CERCLA imposes cleanup liability far and wide. It can reach back in time to previous owners regardless of fault and generally, Potentially Responsible Parties (PRPs) include public entities and private entities, alike.

For PFOA and PFOS, however, the EPA states that it will exercise its discretionary enforcement authority. The agency’s PFAS Enforcement Discretion and Settlement Policy under CERCLA (Discretionary Policy) favors the imposition of liability on major PRPs, such as manufacturers and industrial users of PFOA and PFOS, as well as federal agencies, over what the agency identifies as equitable parties. Equitable parties generally refer to public agencies that own, operate, and manage municipal stormwater systems; treat and distribute water in accordance with stringent standards and permits set forth by the Clean Water Act and Safe Drinking Water Act; collect, treat, and discharge wastewater under National Pollutant Discharge Elimination System (NPDES) permits; and manage the biosolids that are naturally produced as a result of the wastewater treatment process. Consequently, private entities are under greater scrutiny and are more likely to face liability and enforcement actions.

The Discretionary Policy does not provide a complete shield for equitable parties. Under this policy, the EPA will seek settlement agreements with major PRPs that waive the major PRP’s right to seek contribution from equitable parties. Therefore, the policy is only effective if the major PRP agrees to these terms.

Conclusion

The new hazardous substance designation is one of many actions the EPA is taking to address PFAS contamination. The rule coincides with the EPA’s promulgation of new federal drinking water standards for six PFAS and the publication of Interim Guidance on PFAS Destruction and Disposal.