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On 19 April 2024, the U.S. Environmental Protection Agency announced it finalized a rule that designates two widely used per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund.
This final rule designates perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under Superfund, requiring polluters to pay for the cost of cleaning up contamination related to PFOA and PFOS. As noted by EPA in a press release, “exposure to per- and polyfluoroalkyl substances (PFAS) has been linked to cancers, impacts to the liver and heart, and immune and developmental damage to infants and children.”
This final action will enable investigation and cleanup of PFOA and PFOS and ensure that leaks, spills, and other releases are reported. This action builds on the recently finalized standards to protect people and communities from PFAS contamination in drinking water and represents the latest step toward achieving the goals set in EPA’s PFAS Strategic Roadmap and to prevent cancer before it starts through the Biden Cancer Moonshot.
In addition to the final rule, EPA is issuing a separate CERCLA enforcement discretion policy that makes clear that EPA will focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.
“President Biden understands the threat that ‘forever chemicals’ pose to the health of families across the country. That’s why EPA launched its PFAS Strategic Roadmap, a whole-of-agency approach to protecting public health and addressing the harm to communities overburdened by PFAS pollution,” said EPA Administrator Michael S. Regan. “Designating these chemicals under our Superfund authority will allow EPA to address more contaminated sites, take earlier action, and expedite cleanups, all while ensuring polluters pay for the costs to clean up pollution threatening the health of communities.”
The American Chemistry Council (ACC) challenged the addition of PFOA and PFOS to the CERCLA list of hazardous chemicals, calling it an “expensive, ineffective and unworkable means to achieve remediation for these chemicals.”
“CERCLA is complicated, results in extensive delays, and is fraught with unintended consequences. There are other more effective and timely means to address potential site remediation through existing regulatory processes,” said ACC in a statement.
The council noted the CERCLA proposal is further complicated by EPA’s recent release of interim health advisories for PFOA and PFOS, “which could lead to an expectation that all contamination be cleaned up to non-detectable levels of the substances.”
“Given these significant impacts and the tremendous costs to multiple entities, the proposal represents a significant regulatory action requiring a comprehensive assessment of potential costs and benefits, and the public sector impacts before moving forward. EPA also needs to provide science-based cleanup standards and clear, supporting rationale before issuing the rule,” stated ACC.
EPA is taking this step to designate PFOA and PFOS under CERCLA because according to the agency, both chemicals meet the statutory criteria for designation as hazardous substances. Under the rule, entities are required to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound within a 24-hour period to the National Response Center, State, Tribal, and local emergency responders.
The designation of PFOA and PFOS as hazardous substances under CERCLA enables EPA to use one of its strongest enforcement tools to compel polluters to pay for or conduct investigations and cleanup, rather than taxpayers. The designation is especially important as delay in addressing contamination allows PFOA and PFOS more time to migrate in water and soil, worsening existing contamination.
The final rule also means that federal entities that transfer or sell their property must provide notice about the storage, release, or disposal of PFOA or PFOS on the property and guarantee that contamination has been cleaned up or, if needed, that additional cleanup will occur in the future. It will also lead the Department of Transportation to list and regulate these substances as hazardous materials under the Hazardous Materials Transportation Act.
Saying it’s “long past time” for polluters to be held accountable, Ken Cook, President and co-founder of Environmental Working Group, added, “This comes too late for all the people who were poisoned without their knowledge or consent and have paid the price for one of the greatest environmental crimes in history. But today’s designation of PFOA and PFOS as hazardous substances is the first step to bring justice to those who have been harmed.”
This final action is based on significant scientific evidence that these substances, when released into the environment, may present a substantial danger to public health or welfare or the environment. PFOA and PFOS can accumulate and persist in the human body for long periods of time, and evidence from scientific studies demonstrates that exposure to PFOA and PFOS is linked to adverse health effects.
“This is another important step by EPA to protect people and communities from harmful PFAS chemicals, including legacy PFAS contamination across the U.S. The science is clear that PFAS chemicals are linked to a wide range of health harms including cancer, damage to cardiovascular and immune systems, poor pregnancy outcomes, and effects on the developing child,” said Dr. Tracey Woodruff, Professor and Director, Program on Reproductive Health & the Environment (PRHE)/Environmental Research and Translation for Health at the University of California, San Francisco. She added that many of the communities grappling with PFAS contamination are vulnerable populations, including low-income residents and people of color.
For the past 40 years, EPA’s Superfund program has targeted and prioritized cleanups of the nation’s most contaminated sites. The Superfund program addresses more than 800 hazardous substances, including widespread, highly mobile, and persistent chemicals, like PFOA and PFOS. The program also promotes safer industrial practices that enhance community protections by reducing the likelihood of future releases. Additionally, said EPA, cleanups allow communities to put land back into productive use, providing opportunities for jobs and economic growth.
It is important to note that EPA’s enforcement policy, consistent with EPA’s past practice, will not pursue certain parties such as farmers, municipal landfills, water utilities, municipal airports, and local fire departments, where equitable factors do not support seeking CERCLA cleanup or costs.
Read more about the CERCLA final rule here.
Read EPA’s CERCLA Enforcement Discretion Policy here.
Read more about EPA’s strategy to address PFAS here.
Read more about EPA’s Superfund program here.
Read more about the Superfund Enforcement Program here.
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About the author: Sandy Smith, Industry Editor, 3E, is an award-winning newspaper reporter and business-to-business journalist who has spent 20+ years researching and writing about EHS, regulatory compliance, and risk management and networking with EHS professionals. She is passionate about helping to build and maintain safe workplaces and promote workplace cultures that support EHS. She has presented at major conferences and has been interviewed about workplace safety and risk by The Wall Street Journal, CNN, and USA Today.
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