On April 19, 2024, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of its final rule designating two per and polyfluoroalkyl substances (PFAS) as hazardous substances under § 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA listed perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, and set a reportable quantity at one pound for each of these chemicals. The rule is the agency’s first-ever use of CERCLA § 102 to designate hazardous substances. The rule will be effective 60 days after publication in the Federal Register.

The rule brings PFOA and PFOS within CERCLA’s broad liability framework, which the rule does not otherwise modify. EPA stated that the rule will enhance its authority to mandate response actions to address PFOA and PFOS. EPA, however, also released a CERCLA enforcement discretion policy, which states that EPA will focus enforcement on “parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.” Specifically, EPA states that it “does not intend” to pursue entities such as:

• community water systems and publicly owned treatment works;
• municipal separate storm sewer systems;
• publicly owned/operated municipal solid waste landfills;
• publicly owned airports and local fire departments; and
• farms where biosolids are applied to the land.

The enforcement discretion policy also outlines four “fairness and equitable factors” EPA will consider in exercising its discretion in determining whether to pursue additional entities for response actions or costs.

Further, EPA stated that it will seek to enter settlements with other parties that it believes should contribute to the cleanup costs and seek to require those settling parties to waive their rights to sue the types of entities listed above. EPA stated in the final rule that an estimated 33.1% of non-federal facilities listed on, proposed for, or deleted from the National Priorities List where such testing has occurred have detectable levels of PFOA or PFOS.

In designating hazardous substances under CERCLA §102 for the first time, EPA relied on the criteria it proposed in the rule. In the final rule, EPA concluded that PFOA and PFOS “may present a substantial danger to public health or welfare or the environment when released into the environment,” taking into account the “potential harm to humans or the environment from exposure to the substance (i.e., hazard), and how the substance potentially moves, persists, and/or changes when in the environment (i.e., environmental fate and transport).” EPA stated that it “weigh[ed]” this information to determine whether the substance, when released, may present a substantial danger. EPA also stated that it conducted “an additional totality of the circumstances analysis,” and determined that the designation is warranted because “the advantages of designation outweigh the disadvantages,” taking into account costs of the rule, potential health impacts posed by PFOA and PFOS. EPA did not determine whether consideration of costs is required or precluded in any future § 102(a) designation and stated that designating PFOA and PFOS was warranted under either construction.

Once the rule is effective, any release to the environment of one pound or more of PFOA or PFOS within a 24-hour period will require immediate reporting to the National Response Center and State, Tribal, and local emergency responders under CERCLA and the Emergency Planning and Community Right-to-Know Act.

EPA’s final rule is the latest of several policies regarding PFAS under a variety of environmental laws. Last week, EPA finalized the first enforceable federal drinking water standard for PFAS.

Beveridge & Diamond's robust Chemicals, Superfund, Site Remediation, and Natural Resources Damages, and Litigation practices help companies and trade associations navigate the increasing regulation of emerging contaminants, including PFAS. Members of our Water practice group develop creative, strategically tailored solutions to challenges that arise under the nation's water laws. Our lawyers frequently assist clients in commenting on, and bringing administrative challenges to, EPA rulemakings.