The U.S. Environmental Protection Agency (EPA) on April 19, 2024, released a pre-publication version of its final rule classifying two per-and polyfluoroalkyl chemicals (PFAS), and their salts and structural isomers, as "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. The proposed rule will take effect 60 days after it is published in the Federal Register. In addition, federal policymakers have proposed federal legislation to narrow the impact of this EPA rulemaking. Republicans on the Senate Environment and Public Works (EPW) Committee, led by Senator Shelly Moore Capito, have advocated for legislation to exempt passive receivers from liability under the law.
The final rule includes the designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two widely used PFAS chemicals that are commonly found in non-stick cookware, water-resistant fabrics, carpets, firefighting foams, and many other products.
This news follows another recent move where the EPA set final drinking water standards for multiple types of PFAS. This rule comes as part of President Biden's government-wide action plan to reduce PFAS pollution and requires utilities to limit PFAS in drinking water to the lowest levels that can reliably be measured.
This is in addition to the final rule issued by the EPA on October 11, 2023 under the Toxic Substances and Control Act, which requires any entity that has imported or manufactured PFAS for a commercial purpose in any year since January 1, 2011, to report required comprehensive information to the EPA by May 8, 2025, and November 10, 2025 (for small manufacturers). And, this follows the EPA's announcement in August 2023 of a new National Enforcement and Compliance initiative (NECO) to address exposure to PFAS.
What This Classification Means for Businesses
The classification does not ban PFOA or PFOS from production or use. Instead, it requires that their releases into soil or water be reported to authorities. The addition of PFOA and PFOS as CERCLA Hazardous Substances is likely to face future legal challenges from the regulated community.
Under the new rule, all releases of more than one pound within a 24-hour period must be immediately reported to appropriate regulatory agencies, including the National Response Center, and State, Tribal, and local emergency responders, as required under CERLCA and the Emergency Planning and Community Right-to-Know Act (EPCRA). These new classifications will impact nearly all organizations that manufacture, distribute, or handle PFOA and PFOS, as well as all Superfund sites where those substances may have been released or disposed (e.g., landfills).
Superfund Regulation & Superfund Sites
With these substances now subject to regulation under Superfund, the EPA can require the entities responsible for the release of these chemicals to pay for investigations and cleanup of contaminated sites. The issuance of the proposed rule could lead to the addition of more sites to the National Priorities List; requests for sampling and testing for PFOA and PFOS at existing Superfund sites; the potential reopening of other Superfund Sites to address PFOA and PFOS; and increased costs to address PFOA and PFOS at sites currently under characterization or investigation.
While these new classifications will impact nearly all organizations that manufacture, distribute, or handle PFOA and PFOS, it remains to be seen exactly how the EPA will direct its enforcement. On April 19, the EPA issued a separate memorandum addressing its enforcement discretion policy on PFOA and PFOS matters.
According to the EPA, the agency will "focus on holding responsible entities who significantly contributed to the release of PFAS contamination into the environment," (i.e., major PRPs, including parties that manufactured PFAS or used PFAS in the manufacturing processes, federal facilities and other industrial parties). The EPA also stated that it does not intend to pursue entities, such as municipal landfills, water utilities, municipal airports, local fire departments, and farms where biosolids are applied to the land, where the equitable factors do not support such an action. Also, when appropriate, EPA may enter into settlement agreements with those entities, thereby providing them with contribution protection from third-party claims.
Intensified Focus on PFAS
All organizations that manufacture, transport, and utilize PFAS (or are PRPs at sites where PFOS and/or PFAS were released into the environment) should be aware of this evolving regulatory landscape and prepare for increased scrutiny. As these regulations continue to develop, it is important for all companies that encounter PFAS in their supply chains, products, or waste streams to take proactive steps to comply with all new rules. Failure to do so could result in significant cleanup costs down the line.
We are monitoring this situation closely and are tuned in to the conversations in Washington D.C. and on the state level. We can answer questions and help your business better prepare for the enforcement of these evolving rules.
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