Designation of PFOA and PFAS as CERCLA Hazardous Substances
The EPA maintains a list that currently includes over 12,000 perfluoroalkyl and polyfluoroalkyl substances (PFAS) that are known to accumulate in the environment as well as bodies of people and animals and may be linked to harmful health effects relating to reproduction, thyroid and liver function, the immune system, and cancer. These are commonly referred to as ‘forever chemicals’ because they contain a strong carbon-fluorine bond, don’t break down over time, and can dissolve in water.
In October 2021, the EPA released a PFAS Strategic Roadmap, which outlines plans to research, restrict, and remediate PFAS. The term PFAS refers to synthetic or man-made chemicals that have been used since the 1940s in many household and industrial products. They are known for their resistance to grease, oil, water, and heat and have been used in various products, including stain- and water-resistant fabrics, carpets, nonstick cookware, cleaning products, paints, and fire-fighting foams.
The PFAS Strategic Roadmap included a commitment to designate specific PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Such designations would trigger various actions and regulations involving reporting, notification, cleanup, remediation, and cost/liability.
In September 2022, the EPA proposed a rule to designate two of the most widely used PFAS — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and their salts and structural isomers — as hazardous substances under CERCLA. The EPA is currently reviewing comments received on this proposed rule, and a final rule is expected as soon as August 2023.
If this designation is finalized, facilities across the country would be required to report releases of PFOA and PFOS that meet or exceed the reportable quantity assigned to these substances. CERCLA section 102(b) states that the reportable quantity of any hazardous substance is one pound unless changed by other regulations; therefore, any person in charge of a facility would need to report releases of PFOA and PFOS of one pound or more within a 24-hour period. The EPA has the authority to initiate or oversee the cleanup and remediation of sites contaminated with hazardous substances. So the hazardous substance designations would also enhance the ability of federal, tribal, state, and local authorities to obtain information about the location and extent of releases.
CERCLA already grants the EPA authority to address PFOA and PFOS releases because they are considered to be pollutants and contaminants, and EPA can respond if the release or threat of release presents an imminent and substantial danger to public health or welfare. However, if PFOA and PFOS are designated as CERCLA hazardous substances, then EPA can respond without making a determination of imminent and substantial danger.
CERCLA establishes a legal framework for holding responsible parties accountable for costs associated with cleanup. The proposed rule would, in certain circumstances, force the polluter to pay by allowing EPA to seek to recover cleanup costs from a responsible party or to require such a party to conduct the cleanup.
EPA anticipates that a final rule would generally encourage and create incentives for better waste management and treatment practices by facilities handling PFOA or PFOS. As more research is conducted, EPA plans to consider listing additional PFAS as hazardous substances. In April 2023, the EPA issued an Advanced Notice of Proposed Rulemaking (ANPR) asking the public for input regarding potential future hazardous substance designations of per- and polyfluoroalkyl substances (PFAS) under CERCLA.
For more information regarding PFAS, visit EPA’s website.
Catherine Nies is a Chemical Data Management Specialist. Her responsibilities focus on the output end of our Foundation system, verifying the information and deciding what reports to produce, including Tier II, permit summaries, EPCRA reports, and any other high-priority needs of our clients. A second responsibility for Catherine is tracking EPA, OSHA, CDC, and state and local regulatory updates.
