The U.S. Environmental Protection Agency pushed the timeline for the final rule on PFAS CERCLA designation from August 2023 to February 2024.
The EPA’s Spring 2023 Unified Agenda, released on June 13, extended the agency’s estimated publication of a final rule designating certain per- and polyfluoroalkyl substances (PFAS)—namely perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The Importance of the CERCLA Designation
Michael Smith, Aurora Marsh, and Katherine Duncan. CERCLA establishes liability for current and former owners and operators of facilities where hazardous wastes were released or disposed, generators and arrangers of disposal or transportation of hazardous substances, and transporters of hazardous substances. As such, any entity that handles designated PFAS—not solely PFAS manufacturers—could become liable for the recovery and remediation costs of PFAS releases or threatened releases, and would need to comply with federal law on transportation and disposal of hazardous waste. Owners of land contaminated with a hazardous substance are considered potentially responsible parties (PRP) and are jointly and severally liable for response costs. CERCLA also imposes retroactive liability; prior owners of contaminated land may be held liable under the statute. The manufacturing of PFAS began in the United States in the 1930s and the extent of contamination at manufacturing sites and places of use is still unknown. Prospective owners can avoid liability only by qualifying for a CERCLA defense, exemption, or liability protection.
CERCLA liability creates a significant risk for passive receivers, who do not contribute to PFAS contamination and merely receive materials and substances that contain PFAS. Water and wastewater utilities are particularly vulnerable to CERCLA liability due to their role in receiving and filtering PFAS out of drinking water and wastewater. Treatment technologies that can remove PFAS from source water—such as granular activated carbon (GAC), anion exchange resins, and membrane systems (reverse osmosis and nanofiltration)—result in PFAS-filled contaminated media or concentrate that must be disposed of carefully. The most effective known method of destroying PFAS is incineration, but the capability is not widely deployed and it still requires consolidation of media containing PFAS. Transporting and disposing of spent media risks subjecting utilities to severe legal consequences. Wastewater utilities also must contend with both industrial and residential contributors of PFAS, the latter of which poses unique challenges due to the prevalence of PFAS in many consumer products. Wastewater utilities also face uncertainty over regulation of biosolids, a beneficial byproduct of treatment that supports agriculture.
What the Delay in Final Rulemaking Could Mean
The delay in the CERCLA designation presents several implications:
- Broader hazardous substances designations. EPA may be delaying the CERCLA designation to add other PFAS. In April, EPA solicited public comment on the proposed designation as hazardous substances under CERCLA of seven additional PFAS compounds, [1]precursors to the seven PFAS compounds and PFOA and PFOS, and categories of PFAS that share one or more similar characteristics (e.g., physical and chemical properties, chemical structure, or toxicological action). EPA extended the public comment deadline to Aug. 11, 2023.
- Time for congressional action. The delay also gives Congress more time to respond to the proposed designation and offer statutory protections for water and wastewater utilities and other passive receivers like solid waste disposal facilities and composting facilities. Senate Bill 1430, a Republican-led effort introduced by Sen. Lummis (R-WY), would prevent parties from recovering costs or damages under CERCLA from municipal water systems, water treatment operators, municipal stormwater dischargers, or local water agencies (including their contractors) that release PFAS as part of their operations. [2]Lummis also introduced four related bills that would create CERCLA liability protections for PFAS releases related to agriculture (S. 1427), resource management (S. 1429), fire suppression (S. 1432) and airports (S. 1433).
- Revisions to enforcement policy. The delay may also indicate that EPA is taking time to further develop its CERCLA Enforcement Discretion Policy. In the event Congress does not provide a statutory exemption for water systems and other passive receivers, EPA is considering adopting an internal enforcement policy intended to provide a degree of protection. The Office of Enforcement and Compliance Assurance (OECA) hosted two listening sessions in March 2023 to address concerns related to PFAS cleanup enforcement efforts. [3]The policy would clarify EPA’s intention to focus enforcement of the new CERCLA designations against PFAS manufacturers and those whose conduct releases significant amounts of PFAS into the environment. The policy is expected to recommend non-enforcement against passive receivers. However, any such policy would give subject users significantly less legal protection than a statutory exemption.
- Impact of delayed designation on landowners. While the delay could spell relief for passive receivers, it is an unwelcome extension for some landowners and prospective purchasers of land that potentially contains PFAS. As the potential scope and applicability of PFAS regulations and designations continue to evolve and the timeline for implementation of a final rule is continued, landowners and prospective purchasers face continued uncertainty as to the scope of potential liability. In the interim, environmental site assessments will likely increasingly evaluate PFAS, which is now included as an emerging contaminant under the ASTM E1527-21 standard used to satisfy all appropriate inquiries (AAI) under CERCLA. [4]Site cleanup decisions also may be informed by EPA’s list of risk-based regional screening values. [5]
Other Upcoming EPA Actions Implicating PFAS
EPA’s Spring 2023 Unified Agenda also delayed the addition of PFAS to the Toxics Release Inventory (TRI). EPA is now targeting to publish its proposed rule adding PFAS to the TRI in December 2023 and finalize the rule in November 2024, a delay of seven and nine months, respectively.
Other PFAS-related agency actions remain on-track:
- The PFAS National Primary Drinking Water Regulation rulemaking to establish federal standards for PFAS in drinking water—Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs)—is still slated for finalization in January 2024.
- Also on track is an anticipated proposed rulemaking to add PFOA, PFOS, perfluorobutane sulfonate (PFBS) and GenX to the Resources Conservation and Recovery Act (RCRA) list of hazardous constituents.
- Finally, EPA still intends to finalize this December a significant new use rule under the Toxic Substances Control Act (TSCA) that would require PFAS manufacturers and importers to notify EPA before resuming the manufacturing or import of any PFAS for a significant new use.
All of these upcoming PFAS regulations will create far-reaching effects when they are finalized.
Michael P. Smith, Katherine J. Duncan and Aurora Marsh are attorneys with Brownstein Hyatt Farber Schreck LLP. Visit https://www.bhfs.com
