On Aug. 26, the U.S. Environmental Protection Agency (EPA) issued a pre-publication notice of a proposed rulemaking (NPRM) to designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA or Superfund).
Per- and polyfluoroalkyl substances (PFAS), including PFOA and PFOS, are synthetic chemicals that, because of their resistance to heat, oils, water, grease and stains, have been used in many consumer products and industrial applications globally for decades. Some uses include firefighting foam for training and emergency response at military, airport and industrial facilities; coatings for furniture, clothes, nonstick cookware, carpets and food packaging; manufacturing and production, including processes related to chrome plating, electronics, textiles and oil recovery; and hydraulic fluids for aviation.
Exposure to PFAS at certain levels may adversely impact human health and the environment. Some potential health concern effects involve cancer, reproductive, developmental, cardiovascular and immunological. Addressing PFAS is challenging as they are considered “forever chemicals” due to their persistence in the environment.
According to the EPA, this action to address two widely used PFAS chemicals is part of Administrator Regan’s PFAS Strategic Roadmap to address concerns related to public health and the environment. Under the PFAS Strategic Roadmap, EPA specifies a whole-of-agency approach to tackling PFAS, including setting timelines to implement new policies and take specific actions. Under this NPRM, EPA seeks to facilitate cleanups at contaminated sites and reduce human exposure.
Regulating PFAS under CERCLA likely will have many significant impacts, ranging from business transactions and environmental due diligence; ongoing remediation activities at Superfund, commercial, industrial and military sites; business operations including permitting; and PFAS litigation.
EPA’s PFAS Roadmap
The EPA has identified a multi-media approach to address PFAS. Goals and objectives focus on (1) research to increase understanding of PFAS, (2) restrictions to prevent and control PFAS contamination and minimize exposure to PFAS, and (3) remediation to broaden and accelerate the cleanup of PFAS contamination.
Many key actions are described, including collaboration with the U.S. Department of Defense to publish and ultimately codify Method 1633, a new laboratory analytical method to detect 40 specific PFAS compounds in eight environmental matrices, including wastewater, surface water, groundwater and soils; addressing PFAS in drinking water; publish or updating health advisories; and this new NPRM to designate certain PFAS as CERCLA hazardous substances. The PFAS Roadmap indicates the hazardous substance designation would require facilities to report releases that meet or exceed a reportable quantity threshold and enhance agency authority to obtain information on releases and pursue cleanups and cost recovery for cleanups.
Notice of Proposed Rulemaking
The EPA indicates the proposed rulemaking will increase transparency around PFAS releases and help to hold parties accountable for cleaning up their contamination. Once the NPRM is published in the Federal Register, EPA will provide 60 days for public comment. Below are highlights of some major provisions of interest in the NPRM:
- The EPA is proposing to designate PFOA and PFOS, including their salts and structural isomers, as hazardous substances under CERCLA § 102(a) due to evidence indicating they may present substantial danger to public health or welfare or the environment when released into the environment.
- The EPA will not consider cost when determining if PFOA and PFOS should be designated as hazardous substances but is soliciting comment on that approach.
- The proposed CERCLA designation would require:
- Reporting of releases of PFOA and PFOS of one pound or more within a 24-hour period
- Federal agencies to meet the property transfer requirements in CERCA § 120(h) when selling or transferring federally owned real property, including providing a covenant warranting remedial actions for any hazardous substances remaining on the property have been addressed before the transfer and any additional remedial action deemed necessary after the transfer shall be addressed by the United States
- The U.S. Department of Transportation (DOT) to list and regulate PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act
- The EPA notes actions taken by other federal agencies, including the Agency for Toxic Substances and Disease Registry, the Department of Defense and the Department of Energy.
- The EPA notes actions many states are taking related to PFOA and PFOS, including Alaska, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Vermont, Washington and Wisconsin.
- The EPA describes various actions taken internationally, including PFOA being listed under Annex A and PFOS being listed under Annex B of the Stockholm convention and various ongoing activities in Canada.
- The EPA and delegated agencies could require Potentially Responsible Parties (PRPs) to address PFOA or PFOS releases that pose an imminent and substantial endangerment to the public or environment and could recover cleanup costs.
- Private parties that conduct certain cleanups also could recover PFOA and PFOS cleanup costs from PRPs.
- The EPA is seeking comments from communities with environmental justice concerns on strategies to improve access to the reporting data expected to be collected if PFOA and PFOS are designated as hazardous substances.
- The EPA also will separately develop an advance NPRM seeking comments and data to develop potential regulations to designate other PFAS chemicals as hazardous substances under CERCLA.
If your operations will be impacted, you may want to provide comments to inform EPA of significant considerations as it moves forward with the rulemaking. More discussion on this and other steps you can undertake will be provided in an upcoming post. You can read more on PFAS and other important updates in our Essential Environmental and Energy Blog.
- Senior Attorney
Laura L. Romeo is a senior attorney in the firm's Bloomfield Hills office and Co-leader of Plunkett Cooney’s Environmental & Energy Practice Group. Ms. Romeo has numerous years of experience focusing on environmental, energy ...
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