EPA Designates Two Per- and Polyfluoroalkyl Substances (PFAS) as Hazardous Under CERCLA

The Comprehensive Environmental Response Compensation and Liability Act (CERCLA) defines a hazardous substance as any element, compound, mixture, solution, or substance (designated under Section 102 of CERCLA) that may present substantial danger to public health, welfare, or the environment.

CERCLA casts a wide net in making the responsible parties, such as current and past owners, transporters, and arrangers strictly liable for costs of cleanup and damages associated with contamination. In a bid to enhance accountability and transparency in per- and polyfluoroalkyl substances (PFAS) cleanup, the United States Environmental Protection Agency (EPA) recently issued a final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under CERCLA.

Reasons for EPA’s Decision

PFOA, PFOS, and their salts and isomers have been shown through epidemiological and toxicological studies to present a significant danger to public health and welfare. These “forever chemicals” can accumulate in human bodies over time and result in health problems such as cancer and other effects on the immune system, cardiovascular system, and the liver. They even can affect developing fetuses. “Forever chemicals” can be found in many products such as firefighting foam, non-stick pans, stain-proof and waterproof clothing, and food packaging.

What Does This Imply?

The classification of PFOA and PFOS as hazardous substances under CERCLA means that:

• Any releases of PFOA and PFOS that meet or exceed the reportable quantities must be reported to the National Response Center, state, or tribal emergency response commission within 24 hours.
• Any federal entity transferring or selling their property must provide notice about storage, release, or disposal of these “forever chemicals” on their premises.
• Federal agencies transferring or selling their property should have a commitment in the deed that warrants that any PFOA and PFOS contamination has been cleaned. Any future contamination will be cleaned as required under CERCLA 120(h).
• PFOA and PFOS will be regulated under the Hazardous Materials Transportation Act.
• Any facility or vessel owners or operators should provide notice to potentially injured individuals through a publication whenever these substances are released.

Response Actions Required Under the New Final Rule

With the new rule, there are no response actions required due to the designation. However, this makes CERCLA’s enforcement tools and cost recovery available for PFOA and PFOS releases. As a result, the rule ensures the polluters bear the cost of investigations and possible cleanups as opposed to taxpayers.

Need help understanding how changing PFAS regulations might affect your business operations? Get in touch with Walden’s experts at 516-271-1948.