Welcome to the newest installment of The ELAM Group’s series exploring USEPA’s PFAS Strategic Roadmap, a comprehensive approach to address the challenges posed by the “forever chemicals,” also known as Per- and Polyfluoroalkyl Substances (“PFAS”). This roadmap focuses on three key objectives: Research, Restrict and Remediate. Its goal is to deepen the comprehensive understanding of PFAS, limit their use and exposure and tackle contamination in impacted locations.
Our previous white papers provided foundational insights into the roadmap’s goals and initial impacts. Building on that groundwork, this series explores the roadmap’s impact on other environmental laws, including the Toxic Substances Control Act (“TSCA”), Clean Air Act (“CAA”), Safe Drinking Water Act (“SDWA”), Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and more.
In this article, we examine the latest PFAS regulatory updates to CERCLA and explain the broader implications for compliance, public health and environmental protection
The Role of CERCLA in Regulating Hazardous Substances
Enacted in 1980, CERCLA, commonly known as Superfund, was designed to address hazardous substance releases from contaminated and/or abandoned sites. CERCLA empowers the United States Environmental Protection Agency (“EPA”) to clean up such sites and pursue responsible parties for remediation costs or direct cleanup efforts. Unlike other environmental laws, CERCLA grants the EPA the authority to act without first demonstrating imminent danger, enabling a rapid crisis response. CERCLA authorizes the EPA to undertake two kinds of cleanup responses:
- Short-term contamination removal to address immediate threats.
- Long-term remedial responses to mitigate risks posed by hazardous substances where there is a threat of release.
Since the law’s enactment, CERCLA has regulated more than 800 hazardous substances. This list draws from, but is not limited to, the toxin lists compiled by other regulatory bodies, including:
- Clean Water Act (“CWA”) Hazardous Substances
- CWA Toxic Pollutants
- Clean Air Act (“CAA”) Hazardous Air Pollutants (“HAPs”)
- Resource Conservation and Recovery Act (“RCRA”) Hazardous Wastes
- Toxic Substance Control Act (“TSCA”) Hazardous Substances
Regulating PFAS Under CERCLA: A Timeline
In 2022, the EPA proposed a rule adding two widely-used PFAS—perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonic acid (“PFOS”)—to CERCLA’s list of regulated hazardous substances.
This designation would grant the EPA greater authority to hold PFAS polluters accountable by requiring facilities to report PFOA and PFOS releases exceeding reportable quantities of one pound or more. The rule would also authorize the EPA to recover cleanup costs from or mandate remediation by responsible parties associated with sites added to the agency’s National Priorities List (“NPL”). Without this designation, however, the EPA can only attribute blame to polluters but cannot compel action or recover costs.
By April 2023, the EPA sought public input to finalize its proposed PFOA and PFOS designations, providing a lengthy comment period to allow for additional research and analysis.
The Latest: Where Things Stand in 2024
On April 19, 2024, EPA designated PFOA and PFOS compounds as hazardous substances under CERCLA, effective July 8, 2024.
The designation presents several requirements:
- Regulated entities must immediately report PFOA or PFOS releases of one pound or more to the National Response Center or state-designated agencies within 24 hours of their occurrence.
- The EPA can now require responsible parties to conduct or fund cleanup efforts for PFOA and PFOS contamination.
- PFOA and PFOS contamination will be reviewed during EPA’s five-year site evaluations of NPL sites.
- Federal entities transferring property must disclose PFAS contamination levels and outline remediation plans.
- Landowners gain protections under CERCLA’s “All Appropriate Inquiries” rule if they evaluate PFOA and PFOS contamination prior to completing property transactions.
These changes mark a significant regulatory shift, increasing compliance requirements and potential liabilities for regulated entities.
Looking Ahead: Implications of the PFAS Designation
The final rule will have far-reaching financial implications, expanding release-response actions and potentially re-opening sites due to PFAS alone.
Organizations handling PFOA or PFOS substances must implement robust measures to prevent, monitor, report and mitigate releases as well as ensure full compliance with reporting and cleanup requirements. Notably, these regulations extend beyond PFAS manufacturers to encompass entities that store or process PFAS-containing materials.
Adding PFAS under CERCLA emphasizes EPA’s commitment to broader accountability and effective remediation for environmental accidents or spills, possibly leading to proactive cleanup efforts. With this change, industries and municipalities must proactively monitor evolving PFAS regulations, adapt operations and manage liability risks. Collaboration with the EPA regulators will be essential for maintaining compliance and mitigating potential challenges.
If your organization has used PFAS, faces PFAS liability, or operates on property where PFAS may be present, it’s crucial to assess your compliance and potential risks. Contact The ELAM Group to learn more.
