PFAS

EPA may now pursue PFOS and PFOA manufacturers and users under CERCLA

Effective as of yesterday, July 8, 2024, two widely used per- and polyfluoroalkyl substances (PFAS)–perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) are deemed hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). By designating PFOA as a hazardous substance, EPA can now use the full force of CERCLA in order to combat PFAS contamination. This could have wide-ranging implications for both manufacturers and users.

EPA released a memo in conjunction with its prepublication notice earlier this year. The memo outlines the considerations for enforcement that will guide the agency’s decisions on whether to pursue or not pursue potential responsible parties (PRPs), under CERCLA, to address the release of PFAS or the threat of release. EPA will use its CERCLA enforcement authority in order to pursue “major PRPs”, which it defines as those who have contributed significantly to the release or threatened release of PFAS. This includes major manufacturers, users, federal facilities, and other industrial entities.

EPA has identified six National Enforcement and Compliance Initiatives for fiscal years 2020-2027. The NECIs represent EPA’s national program priorities, where it focuses its enforcement and compliance assurance efforts based on the environmental violations that EPA deems most serious. EPA’s cycle goals for PFAS for 2024-2027 are to characterize contaminated sites and control ongoing releases which pose a risk to human health and to the environment. They also aim to ensure compliance with permits, other agreements and prevent PFAS contamination. EPA expects to begin enforcement actions in 2025.

The new rule states that PFAS is ubiquitous in the environment and can be found everywhere from household products to industrial plants and airports. This means that sites that were previously closed under CERCLA may now be reopened, as PFAS wasn’t part of previous remediation.


Hazardous Substances & CERCLA Enforcement

[1] The EPA is able to designate substances as hazardous under CERCLA SS 102 (a). This designation allows a number CERCLA enforcement tools that were previously unavailable.

Before the designation, PFOAs and PFOSs were subject to EPA powers under CERCLA only as “pollutants” or “contaminants,” which is more restricted. The designation has immediate and significant effects.

  • [2]
  • [3]
  • EPA may recover the costs associated with any response or remediation activities conducted by EPA [4], or compel PRPs themselves to carry out response or remediation activities. [5]


Policy on Enforcement Discretion and Settlements for PFAS

According to EPA’s enforcement policy, EPA is focusing enforcement actions on “major PRPs”, parties that have played a major role in releasing PFAS, or in exacerbating its spread into the environment. These include manufacturers of PFAS, or those who have used PFAS during their manufacturing process.

When deciding to take enforcement action against a PRP, EPA considers the following factors.

  • The entity must be a Tribal, State, Local or Tribal Government, or perform a service on behalf of a Tribal, State, Local or Tribal Government.
  • If the entity is involved in public service, it must:

    • Safe drinking water is essential for everyone.
    • Handling municipal solid waste
    • Treatment or management of stormwater or wastewater
    • Reactivating or disposing of pollution control residuals, such as municipal biosolids, activated carbon filters, etc.
    • Assuring the beneficial application of products as a soil conditioner or fertilizer replacement from wastewater treatment processes;
    • Perform emergency fire suppression services.
  • The entity used PFAS in an industrial process or manufactured it.
  • Whether and how actively the entity is involved in the storage, treatment or transport of PFAS.

The Office of Enforcement and Compliance Assurance of the EPA (OECA) stated that they do not intend to pursue any entities when the above listed equitable factors do not support enforcement action, including but not limited:

  • Publicly owned treatment works and community water systems;
  • Municipal separate storm sewer systems (MS4s);
  • Municipal solid waste landfills owned and operated by the public;
  • Airports that are owned by the public and local fire departments.
  • Biosolids applied to land on farms

EPA’s enforcement policies address how PRPs that are not “majors” can limit their exposure to CERCLA risk in relation to PFAS. In settlement agreements with major PRPs, EPA may secure a waiver that prohibits the major PRP from pursuing contribution claims against non-parties. The EPA may also independently enter into settlement agreements, resolving potential liability, and protecting non-“major” PRPs from third-party contributions related to the matters addressed in that settlement agreement.


Background

Since the 1940s, PFAS (also known as “forever chemical”) has been produced and used by a wide range of industries. In the past, PFAS were used in many consumer products including clothing, carpets, furniture fabrics, food packaging, and cookware. PFAS have also been used historically as important components in firefighting products at airfields and refineries and in military bases. They are also found in a variety of industrial processes.

PFOA, PFOS and PFOS-based products are the two most commonly used PFAS. Many sites could be contaminated by high levels of PFOA or PFOS. The PFAS is also persistent and mobile, so it may be detectable and present at some sites.

The PFAS Strategic Roadmap includes the final rule, which is the EPA’s latest action on PFAS.


Key Takeaways

EPA continues to address concerns regarding PFAS. In recent months, it set its First-ever Limits on PFAS Levels in Drinking Water under the Safe Drinking Water Act. It also finalized a Rule requiring certain Reporting and Recordkeeping for PFAS pursuant to the Toxic Substances Control Act.

The EPA will be increasing its scrutiny on entities that have produced PFOA or PFOS, or used them in manufacturing processes. This designation allows the EPA to investigate and clean up more aggressively.

Sites that are investigating or remediating hazardous substance releases or threats of releases may need to conduct additional sampling in the near future for PFOA or PFOS. If PFOA and PFOS are found, EPA could impose additional remediation.

[6] EPA can require additional remedial actions if either substance is found.

This designation may affect parties that have entered into consent agreements with EPA regarding cleanups of polluted sites. These consent decrees contain a number of reopener provisions, which are mandatory in most cases. [7] They allow EPA the ability to reopen cleanups or settlements when conditions on a site are revealed that were previously unknown, or when contaminants are discovered. The EPA hasn’t made an official statement about whether or not it will use these reopeners. However, the aggressive stance of the EPA towards PFAS indicates that EPA may choose to use any tool at its disposal.


Conclusion

The EPA’s classification of PFOA as a hazardous substance under CERCLA will likely lead to an increased scrutiny on entities that manufacture or use these substances in manufacturing processes. EPA’s regulatory program for PFAS generally indicates that EPA could initiate enforcement actions against these entities, require more testing at existing and past cleanup sites and reopen consent agreements to require additional remediation. Entities who may be affected should prepare themselves for EPA’s increased attention on these chemicals.