CLIENT ALERT: PFOA/PFOS Proposed Designation as Hazardous Substances Under CERCLA

On August 26, 2022, the US Environmental Protection Agency (EPA) issued a proposal to designate two per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This proposal follows the rule development process began by the agency in June 2021 and actions outlined in EPA’s October 2021 PFAS Strategic Roadmap to strengthen the ability to hold responsible parties financially accountable. The hazardous substance designation is based on significant evidence that PFOA/PFOS may present a substantial danger to human health and the environment. This designation would:

  1. Require facilities to immediately report any release of PFOA/PFOS substances at or above the reportable quantity (RQ) of 1 pound or more in a 24-hour period,
  2. Obligate federally owned properties being sold or transferred to meet all property transfer requirements under CERCLA, including providing information on when PFOA/PFOS was ‘stored for one year or more, known to have been released, or disposed of’, and
  3. Obligate the DOT to regulate PFOA/PFOS as hazardous materials.

The main business entities affected by this proposed rule are:

  1. PFOA/PFOS manufacturers
  2. PFOA/PFOS processors
  3. Manufacturers of products that contain PFOA/PFOS
  4. Waste management and wastewater treatment facilities

Implications for Industry:

The proposed ruling would allow the EPA to require potentially responsible parties to remediate PFOA/PFOS contamination.  The agency could reopen closed Superfund sites to address PFOA/PFOS as a new contaminant of concern. In addition,

  • Sites having current remediation agreements with the EPA may be required to add PFOA/PFOS evaluation and testing requirements as a part of their remedial investigation and cleanup efforts, thus resulting in potential delays in remediation and/or property transactions.
  • Previously agreed cost allocations may require modification.
  • The EPA will most likely govern cleanup actions on a case-by-case basis until rulemaking is completed.
  • There may be confusion since there are no federal standard PFOA/PFOS cleanup levels, and promulgated standards vary by state. In June 2022, EPA issued interim updated drinking water health advisories for PFOA/PFOS, as an initial step in deriving an enforceable National Primary Drinking Water Regulation. EPA expects to issue a proposed regulation in Fall 2022 with a final regulation in 2023.

There will likely be new compliance requirements for industries that exceed PFOA/PFOS RQs:

  • Facilities that have PFOA/PFOS in their processes and operate wastewater discharge or air emission permits may need to monitor for PFOA/PFOS in their discharge permits and determine if the releases comply with CERCLA’s federally permitted release exclusions.
  • Future regulatory actions may require increased monitoring for permitted wastewater effluent discharge.

Mergers, acquisitions, and divestitures will have an enhanced (and likely more complicated) due diligence process. Due diligence processes will include PFOA/PFOS as a part of their hazardous substance assessment, and the potential for PFOA/PFOS released should be considered as possible recognized environmental conditions (RECs) as part of Phase I ESA due diligence under the new ASTM 1527-21 Phase I ESA Standard.

The EPA hopes that designating PFOA/PFOS as hazardous substances under CERCLA represents an additional regulatory tool to protect public health and the environment and allow for faster cleanups of PFOA/PFOS contaminated sites. The rule is expected to be finalized by the summer of 2023 and will most likely pave the way for the listing of additional PFAS as hazardous substances.

What should you do to prepare?

Documentation, where it exists, will be key to demonstration whether or not your site will be affected by the new rule:

  1. Understand if your facility historically or currently manufactures, processes, or transports PFOA/PFOS, or any products containing PFOA/PFOS.
  2. If there are products which contain PFOA/PFOS at your site, identify the amount, locations, and type of storage containers.
  3. Understand if any of your facilities are located in an underserved environmental justice community. Facilities in these communities may by subject to increased regulatory scrutiny with a focus on PFOA/PFOS, as well as other PFAS.

Reach out to Dana McCue or Beth Hesse today and explore how the EHS Support Team can help you achieve your goals while staying in compliance with rapidly changing PFAS regulations.



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