EPA’s plan to list PFAS compounds under CERCLA

As expected, the U.S. Environmental Protection Agency’s (EPA’s) notice of proposed rulemaking to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as “Superfund”, will soon appear in the Federal Register, after which there will be a 60-day comment period on the proposed rule. The EPA bases this designation on finding that those substances, “when released into the environment, may present substantial danger to the public health or welfare or the environment.”

What the proposed designation includes

If the new rule is finalized as proposed, any releases of PFOA or PFOS of 1 pound or more in a 24-hour period must be reported to the National Response Center. While the text of the proposed rule mentions PFOA and PFOS precursors (i.e., chemicals that can be converted to PFOA and PFOS in the environment), it does not appear that precursors are included in the proposed designation. The proposed designation includes PFOA and PFOS, their salts, and structural isomers (i.e., different molecular shapes with the same chemical formula).

Ripple effects

If the EPA’s new rule is finalized, it will impact actions at current CERCLA sites. Closed sites may be reopened for additional investigation, and sites currently being investigated or remediated may be required to work under the more rigorous Federal CERCLA program rather than voluntary or state-led programs. It could also cause ripple effects because other regulatory programs at the state level use the federal definition of hazardous substances in their programs. For example, it will broaden the scope of Phase I environmental site assessments to include the potential release of PFOA and PFOS in commercial property transactions. It will also require reporting releases of these chemicals, such as the use of PFAS-containing fire-fighting foam. Additional impacts and considerations will be more apparent when the EPA’s Economic Assessment (EA) is published as part of the Federal Register publication. Barr continues to evaluate material posted to the Federal Register to understand other potential ripple effects.

Who pays for cleanup?

Under the new rule, the EPA intends to increase the pace of cleanups and shift cleanup costs from taxpayers to responsible parties—a shift that should be noteworthy for private industry and continues to align with the EPA’s PFAS Strategic Roadmap, in which the Agency aims to reduce PFAS in the environment by focusing on sources. The new rule will not, according to EPA, “create new costs” for the taxpayer. It is unclear, however, how the EPA intends to increase the pace of cleanups other than by using this regulatory mechanism.

Although the EPA says it is not allowed to consider cost when deciding whether to designate substances as hazardous under CERCLA, the agency does make statements about cost impacts. For example, the EPA says direct costs will be low, but indirect costs (such as those for cleanups) cannot be assessed quantitatively, because they are too uncertain at this point. However, the EPA’s EA will provide a qualitative discussion about costs, along with an explanation of why quantitative estimates are impractical. The EA is available in the docket published in the Federal Register.

Public comment period

A 60-day public comment period will begin when the proposed rule is published in the Federal Register. During the comment period, the EPA is requesting comments on the following cost-related issues:

  1. Whether CERCLA allows the EPA to consider cost in designation decisions
  2. How cost should be considered
  3. Additional information on indirect costs for the EA

Need help?

Barr is currently helping clients with a wide variety of PFAS-related projects in states whose programs have already defined PFOA and PFOS as hazardous substances. Further, Barr has a long history of assisting clients and organizations with technical comments in response to developing PFAS regulations. To discuss the potential technical implications of the proposed rule for your site or business, or if you would like Barr’s support in developing technical comments to this proposed rule, contact PFAS@barr.com.

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