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CERCLA’n the Wagons: Even as it Seeks to Expand PFAS Regulations, EPA Will Not Enforce Rules Against Certain Groups

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Since early 2022, the Environmental Protection Agency has pursued authority to establish a rule designating PFAS (per- and polyfluoroalkyl substances) as “hazardous substances” under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), also known as the Superfund Act. 

On August 12, 2022, the CERCLA PFAS designation effort advanced significantly when the Office of Management and Budget approved the EPA’s plan to designate PFOA and PFOS — perfluorooctanoic acid (PFOA) and perfluoroctane sulfonic acid (PFOS) — as hazards. This opened the door for the EPA to put forth its proposed designation of PFOA and PFOS under CERCLA and begin the required public-comment period.

Although the EPA has proposed regulation of only PFOA and PFOS under CERCLA, in February 2023 the EPA sent a proposed rule to the Office of Management and Budget (OMB) stating that it planned to request public input on whether the agency should consider designating more PFAS compounds beyond just PFOA and PFOS as “hazardous substances” under CERCLA. The OMB reviewed this proposal and, on March 24, approved it, allowing the EPA to take another step forward in the rule-making process.

Also back in March, the EPA held a public listening session regarding concerns about potential liability under CERCLA. In April, the EPA published an advance notice of proposed rulemaking, seeking information to assist in the consideration of potential development of future regulations pertaining to PFAS under CERCLA.

The financial impact of such a designation could be profound. Once a substance is classified as a “hazardous substance” under CERCLA, the EPA can force parties it deems “polluters” to either clean up the polluted site or reimburse the EPA for the full remediation of the contaminated site. Even non-polluters could face considerable reporting requirements that would apply to companies anywhere in the PFAS’ stream of commerce.  Obviously, the more PFAS the EPA designates, the more significant the cleanup and compliance costs.

But the EPA stated that it intends to focus on manufacturers, federal facilities, and other industrial parties whose actions result in the release of significant amounts of PFAS.  On October 12, David Uhlmann, assistant administrator for the Environmental Protection Agency’s Office of Enforcement and Compliance Assurance (OECA), stated that EPA will not pursue per- and polyfluoroalkyl substances enforcement actions against farmers who used biosolids, public airports and certain fire departments that used aqueous film forming foam (AFFF) for fire suppression, or municipal wastewater facilities, so long as they were acting in good faith.

Because the OMB has designated the proposed rule as “economically significant,” the EPA will have to conduct a Regulatory Impact Analysis (RIA) upon it. The RIA requires the EPA to show that a CERCLA designation is the least burdensome and most cost-effective way to achieve its goals. Some believe that the EPA already has an RIA in progress, and that its recent actions indicate its confidence that it can meet the RIA requirements for its proposed new policy.

The EPA’s proposed rule could result in staggering cleanup costs to industry, which could be responsible even for PFAs released by third parties.  If no further exemptions prove forthcoming, this could place a particular burden on waste-management companies and water utilities already struggling to dispose of PFA-contaminated material under current regulatory guidelines.

According to the EPA, over 12,000 PFAS currently exist.  If even a small fraction of those receive a CERCLA/Superfund designation, the financial consequences could easily become immense even for industries only tangentially related to PFAS manufacture or distribution. Given the EPA’s stated intent to hold all PFAS polluters of any kind accountable, every responsible company should review their practices for possible PFAS use and prepare a plan to respond to possible regulatory action.