Potential Immense Impact of PFOA and PFOS as CERCLA Hazardous Substances

by | Sep 8, 2022 | Blog | 0 comments

PFOA and PFOS as CERCLA Hazardous Substances

With what looks to be the most significant regulatory development with respect to addressing per- and polyfluoroalkyl substances (PFAS), both perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) are headed to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) hazardous substance list.  For background see our .

First Substances Added Directly to CERCLA

To date, the CERCLA hazardous substances were defined by reference to other environmental authorities.  In other words, CERCLA regulates substances listed under the Resource Conservation and Recovery Act, the Clean Air Act, and the Clean Water Act.  This is the first time hazardous substances have been added to CERCLA apart from being added by reference.

The first indication of this development came at the beginning of this year when the Environmental Protection Agency (EPA) proposed the listing to the Office of Management and Budget (see our February 1, 2022 blog).  Environmental groups were pushing hard on the Biden administration to see this through and are applauding the action while industry groups are expressing serious concerns.

This proposed listing is precedent-setting with potentially far-reaching consequences.

Once the EPA publishes the advance notice of proposed rulemaking, it will be important for groups to provide comments.  As stated in the pre-publication notice, “…the EPA will be developing an advance notice of proposed rulemaking seeking comments and data to assist in the development of potential future regulations pertaining to other PFAS designation as hazardous substances under CERCLA.”

Landfills are just one of many segments that would be impacted by the proposed addition of PFOA and PFOS to the CERCLA hazardous substance list (Image by Miroslav Gecovic from Pixabay).

Who Does this Affect?

Each time a new regulation is proposed the EPA is required to state who this regulation may potentially affect.  The breadth of industry categories identified for this proposed action is widespread.

  • Aviation operations
  • Carpet manufacturers
  • Car washes
  • Chemical manufacturing
  • Chrome electroplating, anodizing, and etching services
  • Coatings, paints, and varnish manufacturers
  • Firefighting foam manufacturers
  • Landfills
  • Medical devices
  • Municipal fire departments and firefighting training centers, including Federal agencies that use, trained with, and tested firefighting foams
  • Paper mills
  • Pesticides and insecticides
  • Petroleum and coal product manufacturing
  • Petroleum refineries and terminals
  • Photographic film manufacturers
  • Polish, wax, and cleaning product manufacturers
  • Polymer manufacturers
  • Printing facilities where inks are used in photolithography
  • Textile mills (textiles and upholstery)
  • Waste management and remediation services
  • Wastewater treatment plants

Health Advisory Limit Complicating Matters

Adding more complication is the Heath Advisory Limit the EPA issued earlier this year.

The law firm, Foley Lardner states, “Further complicating matters, in June 2022, EPA issued interim drinking water health advisories for PFOA and PFOS that drastically lowered its prior advisories from 400 ppt to 0.004 ppt for PFOA, and from 200 ppt to .02 ppt for PFOS.  In the Proposed Rule, EPA acknowledges that the new interim levels are below the levels at which existing analytical methods can even measure these compounds in drinking water, yet the agency does not expect the numbers to be revised upwards once finalized.  It is not at all clear what standards may govern in a PFOA or PFOS cleanup action, and it may be that this is determined on a case-by-case basis.”

The Potential Impact of Listing PFOA and PFOS to CERCLA

The anticipated proposed rule will have what many are viewing as a monumental impact on the regulated community.  Just a few of the potential impacts and concerns associated with the CERCLA listing include the following:

  • Potential Superfund liability for any property on which PFOA or PFOS are found, regardless of whether the property owner knowingly used or placed PFOA or PFOS-containing materials at the property.
  • Environmental remediation liability for past legal disposal of waste containing PFOA and PFOS in landfills.
  • Nearly every non-hazardous landfill contains PFAS-containing wastes, which will now be CERCLA hazardous substances. Will the EPA force remediation/closure of these landfills?  How will this action affect disposal options for landfill leachate?
  • Potential reopener for sites that were previously closed.
  • Potentially opening municipalities to Superfund liability for disposal of biosolids or discharge of water that contains PFOA and/or PFOS.
  • How will this impact real estate transactions? Recall earlier this year, the EPA’s All Appropriate Inquiry Rule did not adopt the new ASTM 1527-21 for Phase I Environmental Site Assessments.  The reason for not adopting the rule was related to the new ASTM standard considering PFAS as a “non-scope” item.  As CERCLA hazardous substances, PFOA and PFOS will have to be considered in evaluating the site for Recognized Environmental Conditions.
  • Increased reporting obligations (to the National Response Center) under 40 CFR 302 of CERCLA for PFOA and PFOS releases that exceed the threshold quantity. The reporting threshold for the two compounds will be one pound.
  • Increased reporting obligations under the Emergency Planning and Community Right to Know Act.
  • The Department of Transportation (DOT) will be obligated to list and regulate PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act, per CERCLA Section 306(a), which requires DOT to list and regulate as hazardous materials all CERCLA hazardous substances (Source: Winston Strawn).
  • Increased legal action by environmental groups to force clean ups.

Final Thoughts of Potential PFOA/PFOS Regulation

Shoehorning a new environmental concern into the existing environmental regulatory framework seems to be wrought with significant liability and expenses that will be unique from previous environmental issues.

PFAS are unlike other contaminants we have addressed as a nation because they are, by all accounts, everywhere across the globe.  At a minimum, we should look for a much more tightly-written regulation – one that effectively addresses the health and environmental concerns but does not become an unmanageable behemoth.

We will continue to monitor this important development.  In the meantime, if you need assistance with a PFAS issue, feel free to contact us, we have a lot of hands-on experience (assessment, remediation, litigation support) in addressing PFAS.

We also have additional information on our PFAS Resources Page.

This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years.  He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

The blog was reviewed by Jeffrey Bolin, M.S.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, frequent speaker, and expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.  

Follow Dragun Corporation on LinkedIn.

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