On May 8, 2024, the Environmental Protection Agency (EPA) published rule revisions adding two perfluoro chemicals -- Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) – as hazardous substances under the federal Superfund law (Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)). This listing is the latest regulatory action by EPA tightening controls on per- and poly-fluoroalkyl substances (PFAs); the initiatives are covered under the agency’s “PFAs Strategic Roadmap: EPA’s Commitments to Action 2021—2024,” promulgated in October 2021. The remainder of this note describes the latest action, which finalizes a proposal issued in August 2021 (which I wrote about HERE).
What are PFAs?
PFAs are thousands of synthetic organofluorine chemical compounds with multiple fluorine atoms attached to an alkyl chain. They are used in a very wide variety of applications; EPA’s rulemaking identifies uses in industry and “a wide range of consumer products including carpets, clothing, fabrics for furniture, and packaging for food and cookware that are resistant to water, grease, or stains. They have also been used for firefighting and various industrial processes.” Importantly for environmental and human health, they are persistent and mobile in the environment. Because of their environmental persistence, EPA and other concerned parties frequently refer to them as “forever chemicals.” Furthermore, exposure can lead to “a broad range of adverse health effects, including developmental effects to fetuses during pregnancy or to infants (e.g., low birth weight, accelerated puberty, skeletal variations), liver effects (e.g., tissue damage), immune effects (e.g., antibody production and immunity), and other effects (e.g., cholesterol changes).” Because of these wide applications and wide environmental fates, PFA materials and wastes are potentially subject to many environmental, public health and worker safety laws.
What’s in EPA’s Strategic Roadmap?
In 2021, EPA formed a Council on PFAs and published its Strategic Roadmap, to identify ways to apply the agency’s many sources of legal authority (including Toxic substances Control Act (TSCA), Toxics Release Inventory (TRI; under Emergency Planning and Community Right-to-Know Act (EPCRA)), Safe Drinking Water Act (SDWA), Clean Water Act (CWA), CERCLA, Clean Air Act (CAA), and Resource Conservation and Recovery Act (RCRA) hazardous waste regulation. The Roadmap also provides for the design of research and regulatory approaches to PFAs. (I wrote about the Roadmap in my note discussing EPA’s CERCLA proposal, identified above).
What is EPA’s latest action?
EPA has the following PFAs as hazardous substances under CERCLA, finding that they meet the statutory standard of “when released into the environment may present substantial danger to the public health or welfare of the environment.” (42 USC 9602(a)):
- Perfluorooctanesulfonic acid, salts, & structural isomers
- Perfluorooctanesulfonic acid
- Perfluorooctanoic acid, salts, & structural isomers
- Perfluorooctanoic acid
As CERCLA-listed hazardous substances, they become subject to a variety of controls, including:
- Reporting and notification obligations when there is a release of any listed PFAs above the 1 pound RQ, under CERCLA (and EPCRA)
- Obligations on the U.S. Government when it transfers or sells certain properties,
- obligation on DOT to list and regulate CERCLA designated hazardous substances as hazardous materials (under the Hazardous Materials Transportation Act), and
- Site characterization and cleanup responsibilities for “responsible parties” at contaminated sites – while this rule was awaiting publication, EPA published an enforcement memorandum, confirming that the agency will use its available CERCLA authority, focusing on “holding accountable those parties that have played a significant role in releasing or exacerbating the spread of PFAs into the environment.” Including parties that manufactured PFAs or used them in their own manufacturing processes, as well as users and the parties who released the PFAs into the environment.
What’s Next?
The listing become effective on July 8, 2024. The new listings should accelerate and intensify the widespread investigations and cleanup activities already underway. However, new regulatory actions inevitably generate litigation, so it remains to be seen whether EPA will be able to confirm and use this newly-defined authority -- and, depending on the results of the upcoming Presidential election, whether the agency will continue these efforts in 2025.
Self-Assessment Checklist
Does the organization own or operate any facility with PFOA or PFOS onsite at any time in quantities of 1 pound or more?
If so, is the organization preparing to notify federal, state and local environmental and emergency response organizations within 24 hours after unauthorized release of one pound or more of either substance?
Has the organization evaluated its handling of these substances to assess release prevention measures?
Where Can I Go For More Information?
- EPA
- listing rule (5/8/24 Federal Register )
- “PFAS Enforcement Discretion and Settlement Policy Under CERCLA” (4/19/24)
- PFAS Strategic Roadmap (10/18/21)
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com