EPA Designates PFOA and PFOS as Hazardous Substances under Superfund Law

On April 19, 2024, the US Environmental Protection Agency (EPA) published a rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), along with their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This amendment to Title 40 of the Code of Federal Regulations will become effective 60 days after publication in the Federal Register.

Background

PFOA, PFOS, their salts, and structural isomers are considered hazardous substances under CERCLA due to their prolonged accumulation and persistence in the human body. Studies on both laboratory animals and human populations have revealed a correlation between exposure to these substances and adverse health effects including cancer, immune system disruption, cardiovascular issues, liver damage, and harm to developing fetuses. Failure to address these contaminants will lead to continued migration, increased exposure risks and potential cleanup expenses.

CERCLA aims to identify and prioritize sites that pose unreasonable risks to human health, ensure the prompt cleanup of contaminated areas and hold responsible parties accountable for significant pollution. This approach aligns with CERCLA's core objectives of cleaning up contaminated sites and enforcing the "Polluter Pays" principle, which enables EPA to require responsible parties to cover the costs for cleanup.

Reporting Requirements

The direct effects of the rule require:

• All releases of PFOA and PFOS surpassing the one-pound Reportable Quantity (RQ) within a 24-hour period must be reported to the National Response Center (NRC). A subsequent written report should be submitted to the State Emergency Response Commission (SERC) or Tribal Emergency Response Commission (TERC), as well as the Local Emergency Planning Committee (LEPC) or Tribal emergency planning committee (TEPC), at the earliest opportunity after the release.
• Federal entities that transfer or sell property must notify storage, release, or disposal of PFOA or PFOS. They must also include a covenant in the deed, committing to clean up any resulting contamination as per CERCLA 120(h).
• The U.S. Department of Transportation must list and regulate these substances as hazardous materials under the Hazardous Materials Transportation Act.

• Vessel or facility owners/operators must give reasonable notice of any release of these substances to potentially affected parties by publication in local newspapers about.

This rule may impact various entities including, but not limited to:

1. Manufacturers (including importers) of PFOA and/or PFOS, and articles containing these substances.
2. Processors of PFOA and/or PFOS.
3. Manufacturers of products containing PFOA and/or PFOS.
4. Downstream users of PFOA and PFOS.
5. Downstream users of products containing PFOA and/or PFOS.
6. Waste management facilities.
7. Wastewater treatment facilities.

The pre-publication of final rule can be accessed here.