On April 19, 2024, the Environmental Protection Agency (EPA) issued notice of a new rule designating two per- and polyfluoroalkyl substance (PFAS) compounds – PFOA and PFOS, including their salts and structural isomers – as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This rule requires reporting of certain releases and will likely trigger additional enforcement and litigation at sites across the country. The rule may also complicate ongoing cleanups and could require further action at some sites previously deemed closed. Unless the rule is stayed by a legal challenge, it will go into effect 60 days after publication in the Federal Register.
PFAS
PFAS are synthetic chemicals used in many products and materials by a broad range of industries because they resist heat, water, and oil. Given their widespread use, these chemicals are relatively ubiquitous at low levels and have been detected in soil, sediments, groundwater, and surface water at many sites. Known as “forever chemicals,” PFAS persist in the environment for many years.
EPA’s New Rule
Under the new rule:
- Releases of PFOA or PFOS of one pound or more over a 24-hour period must be reported to the National Response Center and certain state, local, and tribal agencies.
- The EPA can initiate response actions and order parties to investigate and remediate PFOA and PFOS without first showing that conditions pose an imminent and substantial endangerment.
- Parties that incur CERCLA response costs due to PFOA or PFOS may be able to pursue claims for reimbursement or contribution from liable parties.
Implications
The rule will likely lead to the designation of new Superfund sites as the EPA reviews the quickly expanding body of publicly available PFAS data. It will also likely complicate Superfund cleanups at many existing sites where the EPA may require parties to restart investigations and risk assessments to assess PFAS. If the EPA has already selected the remedy, it may be necessary to amend the record of decision. For some sites where the remedy is already under construction, work may need to be redesigned. For sites already deemed closed, the EPA may seek to reopen consent decree obligations to address PFAS.
While the rule targets just two PFAS, it may have broader implications since the most likely test method (CWA method 1633) tests for 40 PFAS, raising the risk that the EPA may also require action for other PFAS detected. The EPA is also moving forward to regulate additional types of PFAS under other statutes, which could also affect CERCLA cleanups. For example, on April 10, 2024, the EPA set first-ever federal drinking-water standards for six PFAS, some of which may be incorporated into CERCLA cleanup requirements for drinking-water sources. Certain states have also adopted PFAS limits that could be incorporated into CERCLA requirements as applicable or relevant and appropriate requirements (ARARs).
EPA’s Enforcement Policy
In issuing the rule, the EPA also simultaneously released a new PFAS enforcement policy. Under this policy, the EPA will focus on industrial parties that have manufactured or used PFAS. It generally will not enforce against sources such as community water systems, publicly owned treatment works, municipal separate storm sewer systems, public municipal solid-waste landfills, public airports, public fire departments, or farms where biosolids are applied to the land. The EPA will also consider measures to shield these parties from liability by entering into friendly settlements with contribution protection and by requiring other settling parties to waive claims against these parties. The implications may vary from site to site, but the policy could undermine efforts to address PFAS in some areas where shielded entities constitute the primary PFAS sources and could lead to inequitable outcomes depending on which non-shielded sources are left liable for the cleanup.
Companies that use or handle PFAS should evaluate how this rule may affect their operations. In addition, parties that are, or have been, involved in a Superfund cleanup or CERCLA litigation should consider whether the designation of these PFAS compounds could trigger additional work obligations, reopeners, or new demands.
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