EPA designates two PFAS chemicals as hazardous under CERCLA

The U.S. Environmental Protection Agency has designated two so-called forever chemicals — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) — as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, known as CERCLA, or Superfund.

The EPA’s rulemaking, issued on April 19 and effective on July 8, represents another step in the EPA’s plans to prevent pollution and address contamination from per- and polyfluoroalkyl substances, or PFAS.

PFAS have been commonly used in manufacturing because of their stain-resistant, water-resistant, and non-stick qualities. This family of very stable chemicals remains in the environment for a long time and is resistant to traditional contaminant remediation measures. PFAS are also considered hazardous to human health.

The EPA’s designation of PFOA and PFOS as hazardous substances will allow the agency to clean up contaminated sites and hold polluters responsible for the contamination, either by performing the necessary cleanups or reimbursing the EPA for remediation work.

Through the Superfund process, the EPA aims to protect the health of the public and the affected environment, engage the community and promote awareness, and return these sites to productive use.

As of July 8, when a release of PFOA or PFOS that meets or exceeds the reportable quantity occurs, polluters must report the release within 24 hours to the National Response Center, the appropriate state emergency response commission, and the local emergency planning committee. This rule does not apply to past releases of PFOA or PFOS, so long as they are not continuing as of the effective date.

Local financial implications
Since the rulemaking process began in 2022, local governments have expressed concerns about the potential financial implications for cities and towns. While municipalities are not directly responsible for PFAS contamination in the environment, there was a potential for certain municipal operations to be considered liable under CERCLA.

Municipalities could encounter PFAS in their drinking water, wastewater, stormwater, and landfill processes, as these chemicals are widespread in the environment. As “passive receivers” of PFAS, municipalities are actively advocating for the EPA to provide municipal liability protection should PFOA and PFOS, or other PFAS chemicals, be designated as hazardous substances under CERCLA.

The MMA emphasized these concerns in a letter to the U.S. Senate Committee on the Environment and Public Works last summer, as the committee considered a bill that would address PFAS contamination nationwide. The MMA expressed similar sentiments to the Massachusetts Legislature’s Joint Committee on Public Health last June, as the committee considered legislation that would provide for a PFAS Remediation Trust Fund and other mechanisms to combat pollution within the state.

In response, the EPA has issued a separate CERCLA Enforcement Discretion Policy.

Enforcement policy
An EPA memo articulates the agency’s intention to focus on polluters most responsible for the release of PFAS into the environment — specifically manufacturers, federal facilities, and industrial parties who used PFOA and PFOS.

The policy indicates that the EPA does not intend to use its authority to pursue “entities where equitable factors do not support seeking response actions or costs under CERCLA.” These entities include:
• Community water systems and publicly owned treatment works
• Municipal separate storm sewer systems
• Publicly owned or operated municipal solid waste landfills
• Publicly owned airports and local fire departments
• Farms where biosolids are applied to the land

The National League of Cities points out that the agency has previously stated, however, that it lacks the ability to shield municipalities from lawsuits brought by PFAS manufacturers or other parties responsible for contamination, which raises concerns about significant litigation or cleanup costs for municipalities, on a retroactive and proactive basis.

The EPA website has additional information on the PFAS Enforcement Discretion and Settlement Policy Under CERCLA, as well as information about the designation of PFOA and PFOS as hazardous substances under CERCLA. Additional documents are available on www.regulations.gov (EPA docket ID EPA-HQ-OLEM-2019-0341).

The MMA will continue to advocate for clear liability protection for local governments through a statutory exemption.