EPA designates PFOA, PFOS as hazardous substances under CERCLA

EPA headquarters

The U.S. Environmental Protection Agency (EPA) on Friday finalized more regulatory action on PFAS as it moved to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund.

EPA also released a corresponding enforcement discretion policy memo stating that the agency intends to 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. EPA said it intends “not to 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.

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 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.

EPA finalizes highly-anticipated rule to regulate PFAS in drinking water

EPA said the designation of PFOA and PFOS as hazardous substances under CERCLA enables it to use one of its strongest enforcement tools to compel polluters to pay for or conduct investigations and cleanup, rather than taxpayers. “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,” said EPA Administrator Michael S. Regan.

The CERCLA designation comes just more than a week after EPA finalized a final National Primary Drinking Water Regulation (NPDWR), establishing Maximum Contaminant Levels (MCLs) for six PFAS, primarily regulating PFOA and PFOS to MCLs of 4 parts per trillion (ppt). The long-awaited regulation has already drawn pushback from the water sector over the cost increases it may impose on utilities and ratepayers.

Sector groups representing public utilities said today’s CERCLA designation for PFOA and PFOS will put water/wastewater systems and their ratepayers at even greater risk for increased costs despite the agency’s enforcement discretion policy.

“Unfortunately, EPA’s CERCLA designations come ahead of the more necessary step of imposing source control requirements to keep PFAS out of our homes, commerce, and waterways in the first place,” said Adam Krantz, CEO of the National Association of Clean Water Agencies (NACWA) on Friday.

“While EPA’s enforcement discretion memo makes it clear that the agency will not target clean water agencies for PFAS clean-ups, CERCLA by design places those same utilities at risk of lawsuits initiated by third parties – including the polluters themselves – intended to foist the costs of cleaning up PFAS pollution onto the very public that is already having to endure the human health and environmental burdens caused by these ‘forever chemicals.'”

The Water Coalition Against PFAS, an alliance of drinking water and wastewater sector organizations of which NACWA is a part of, said it was disappointed in the CERCLA designation, saying the move would allow polluters to skirt responsibility for cleanup.

The group added: “The ‘enforcement discretion’ memo simultaneously released by the EPA shows that the agency does not believe that water systems are the problem, but the reality of this final rule means that utilities will face increased operational costs and uncertainties, and most worrisome, will be the target of endless litigation from the manufacturers of PFAS. Even if specific legal action from polluters fail, the litigation costs alone will be enough to financially strain water systems and result in increasing costs for customers.”

The coalition is urging Congress to pass legislation to protect water systems from CERCLA liability.

EPA said the final action is based on “significant scientific evidence” that PFOA and PFOS, when released into the environment, may present a substantial danger to public health or welfare or the environment. It added that PFOA and PFOS can accumulate and persist in the human body for long periods of time, and evidence from scientific studies demonstrate that exposure to PFOA and PFOS is linked to adverse health effects. 

However, some in the sector have noted that health research on the effects of PFAS is ongoing, in addition to sector organizations’ concerns about the costly 4 ppt rule and its necessity (AWWA has said standards of 10 ppt for PFOA and PFOS are more appropriate).

EPA will publish the Final Rule in the Federal Register shortly. The rule will be effective 60 days after the rule is published in the Federal Register.

Read more about the CERCLA final rule here.

The Water Coalition Against PFAS represents a broad alliance of drinking water and wastewater organizations including: the Association of Metropolitan Water Agencies (AMWA); the American Water Works Association (AWWA); the National Association of Clean Water Agencies (NACWA); the National Association of Water Companies (NAWC); the National Rural Water Association (NRWA); and the Water Environment Federation (WEF). 


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