EPA Designates PFOA and PFOS as CERCLA Hazardous Substances

On April 19, EPA released its final rule on the “Designation of PFOA and PFOS as CERCLA Hazardous Substances.” The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Superfund Law provides federal authority to address and prioritize sites that may endanger public health or the environment. This rule will enable EPA and delegated state agencies to address more waste sites and take earlier action or expedite cleanup. The rule requires:

• Entities to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound or more in any 24-hour period to the National Response Center, state or Tribal emergency response commission, and the local emergency planning committee.
• Federal agencies that sell or transfer property to provide notice about the storage, release, or disposal of PFOA or PFOS on the property and include a deed covenant guaranteeing remediation.
• The Department of Transportation to list and regulate PFOA and PFOS under the Hazardous Materials Transportation Act.

Water utilities and other entities have expressed concerns about potential liability and costs associated with this action. In this regard, EPA has also issued a memorandum, “PFAS Enforcement Discretion Settlement Policy Under CERCLA.” The memo says that the Agency does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including water utilities, municipal landfills, farms where biosolids are applied to land, municipal airports, and local fire departments.

For more information, read the press release and visit the EPA website. View ASDWA’s June 2023 comments on this designation here.