CERCLA Designation for PFAS Compounds: How does this affect my facility?

On April 19, 2024, the United States Environmental Protection Agency (U.S. EPA) designated two types of per- and polyfluoroalkyl substances (PFAS), perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances. At the same time, the Assistant Administrator for Enforcement and Compliance Assurance issued a memorandum titled “PFAS Enforcement Discretion and Settlement Policy Under CERCLA” These actions come on the heels of several other key federal rules relating to PFOA and PFOS, including the proposed “hazardous constituents” designation under the Resource Conservation and Recovery Act (RCRA) and the final drinking water standards under the Safe Drinking Water Act (SDWA).

The seven broad categories of entities that may potentially be affected by the final CERCLA rule include, but are not limited to:

• PFOA or PFOS manufacturers (including importers and importers of articles that contain these substances)
• PFOA or PFOS processors
• Manufacturers of products containing PFOA or PFOS
• Downstream users of PFOA or PFOS
• Downstream users of PFOA or PFOS products
• Waste management facilities
• Wastewater treatment facilities

While U.S. EPA mentioned these broad categories in regard to potential remediation or CERCLA investigations, other facilities may be impacted through its water intake and industrial water discharge if PFAS concentrations above the reportable quantity (RQ) as discussed below.

What’s in the Rule?

U.S. EPA amended Table 302.4 of 40 CFR Part 302 to include PFOA, PFOS, and their respective salts and structural isomers. The designation of PFOA and PFOS as hazardous substances can trigger the applicability of release reporting requirements under CERCLA Sections 103 and 111(g) and Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA). Facilities must report releases of hazardous substances at or above the RQ within a 24-hour period. For PFOA and PFOS, an RQ of one pound has been assigned. If your facility regularly emits (discharges) more than one pound of PFOA or PFOS in any 24-hour period and your facility permits do not address these discharges, you will need to assess reporting under CERLCA for continuous release reporting. Episodic releases, releases that exceed a “statistically significant increase” from a “continuous release” and occur in a quantity equal to or greater than an RQ, must be reported immediately to the NRC, SERC, and LEPC.

Additionally, CERCLA Section 306 provides that the Department of Transportation (DOT) is required to regulate any substance added to the CERCLA list as a “hazardous material” in accordance with the Hazardous Materials Transportation Act (HMTA).

The final rule also allows for states and U.S. EPA to initiate investigations and clean ups under the “Superfund” law. And, as with other substances listed, PFOA and PFOS are now included when performing an All Appropriate Inquiry (AAI) as part of any property transaction.

What Enforcement Discretion is U.S. EPA taking?

According to the April 19^th memorandum, “EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including, but not limited to, 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. For these same parties, EPA can use CERCLA statutory authorities when appropriate to enter into settlements that provide contribution protection from third party claims for matters addressed in the settlement.”

U.S. EPA has decided to not pursue government-owned utilities and landfills as part of their enforcement discretion. The memorandum also states that U.S. EPA may widen that discretion based on mitigating factors. Remember that while CERCLA liability extends to the following entities, they have always used discretion in determining viable potential responsible parties (PRPs):

• Current owners and operators of a facility where hazardous substances come to be located.
• Owners and operators of a facility at the time that hazardous substances were disposed of at the facility.
• Generators and parties that arranged for the disposal or transport of hazardous substances.
• Transporters of hazardous waste that selected the site where the hazardous substances were brought.

If you are in one of the seven broad categories of entities that may potentially be affected by the final CERCLA rule, you should have a strategy in place for potential current and future liabilities related to historic PFAS releases.

What actions should you take?

Facilities should review their processes and procedures across the board as it relates to PFAS in general. Remember that this rulemaking opens the door for further listings of other PFAS under CERCLA.

• If your facility is in one of the seven broad categories listed above, consider your strategy for quantifying all emissions, discharges, or releases with respect to the RQs.
• Review your sampling program to identify proper procedures and test methods.
• Watch for and update your DOT procedures for shipping, if necessary.
• Evaluate continuous releases to determine if CECRLA reporting is necessary.
• Update spill plans and cleanup procedures to include PFAS as a reportable chemical.
• If you are purchasing, leasing, or divesting property, make sure PFAS is evaluated during the AAI (also known as Phase I Environmental Site Assessment).

ALL4 can assist with your overall PFAS strategy, update current plans and procedures, evaluate applicability, and provide assistance with sampling, as necessary. If you have any questions regarding the CERCLA designation or other PFAS rules, please reach out to Karen Thompson or Kayla Nuschke.