EPA designates PFOA and PFOS as hazardous substances under CERCLA

On April 19, 2024, U.S. Environmental Protection Agency (EPA) designated two PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

This final rule designates two widely used PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under CERCLA. This will help ensure that polluters pay to clean up contamination from PFAS.

Exposure to PFAS has been linked to cancers, impacts to the liver and heart, and immune and developmental damage to infants and children.

The final rule

This final action will address PFOA and PFOS contamination by enabling investigation and cleanup of the chemicals. It ensures that leaks, spills and other releases are reported.

U.S. EPA also issued a separate CERCLA enforcement discretion policy that allows the EPA to focus enforcement on parties who have significantly contributed to the release of PFAS chemicals into the environment. These include parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities and other industrial parties.

The ruling underscores the effort of U.S. EPA to hold polluters accountable, and adds clarity on the agency’s intent not to pursue certain parties such as farmers, municipal landfills, water utilities, municipal airports and local fire departments. This policy, however, is not part of the codified rule, meaning it could change with a new presidential administration or change in EPA leadership. The policy also does not protect or exempt any utilities from third-party lawsuits.

Entities will be 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. This new designation of PFOA and PFOS as hazardous substances under CERCLA enables U.S. EPA to use one of its strongest enforcement tools to compel polluters to pay for or conduct investigations for cleanup, rather than taxpayers.

This designation is important because if there is a delay in reporting and addressing contamination, it allows PFOA and PFOS more time to migrate in water and soil, worsening existing contamination.

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WEF comment

Water Environment Federation (WEF) stated in an April 19, 2024, press release that it applauds the EPA’s effort to use the CERCLA regulation to hold PFOA and PFOS manufactured responsible for clean-up costs due to decades of PFAS production.

“This will be an extremely costly and technically challenging undertaking. Though water utilities will play a central role in helping to remove PFAS from water and the environment, these utilities are passive receivers of PFAS, and their ratepayers should not be held responsible for PFAS-related costs,” said Aimeé Killeen, president of the Water Environment Federation, in the press release.

“Unfortunately, the CERCLA statute has a flaw that directly and indirectly exposes utilities to potential liability and clean-up cost. While WEF appreciates the EPA’s inclusion of an enforcement discretion memo with the release of the CERCLA rule, we — and other national water associations — strongly urge Congress to pass a liability exemption for water utilities and all passive receivers of PFAS,” Killeen added.

AWWA comment

The American Water Works Association (AWWA), a member of the Water Coalition Against PFAS, stated in a April 19, 2024, press release that it was disappointed that the EPA’s designation of PFOA and PFOS as hazardous substances will allow polluters to skirt liability.

AWWA stated that “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 fails, the litigation costs alone will be enough to financially strain water systems and result in increasing costs for customers.”

AWWA stated EPA’s final ruling missed an opportunity to protect water utilities from litigation. Water utilities do not produce PFAS. Instead, they are tasked with cleaning up after polluters by treating the contaminants out of drinking water. The ruling leaves a door open for utilities to be held liable for PFAS in drinking water. This bypasses the EPA’s “polluter pays” approach.

“With the rule now finalized, Congress must act immediately to uphold CERCLA’s “polluter pays” principle and provide a statutory liability shield for water systems related to PFAS cleanups,” AWWA stated in the release.

NAWC comment

The National Association of Water Companies (NAWC) said in a press release that the EPA designation of certain PFAS as hazardous substances under the nation’s CERCLA law will push liability from polluters to communities.

The release states that a key component of CERCLA is to establish liability for hazardous waste cleanup by the generator of the waste. Water utilities neither produce nor use PFAS, they treat it. The only reason they handle and dispose of PFAS is because they are cleaning up the polluters’ environmental failures.

“With the EPA’s action, water utilities that are doing their jobs to protect the health and safety of their customers and the environment are exposed to billions of dollars more in liability because of those cleanup efforts,” said Robert F. Powelson, president and CEO of NAWC, in the release. “The polluters already are not paying their fair share when it comes to removing their contamination from our water supplies. Without Congressional action, this EPA designation means the corporations that profited from the use and manufacture of PFAS can sue water and wastewater utilities that have been treating for PFAS in order to shift cleanup costs to the communities those utilities serve.”

Powelson stated in the release that communities are already being forced to pay large sums of money in PFAS treatment costs to clean up the problem. He stated that the companies that profited from the use of PFAS, and hid the effects from the public for decades, can use the new designation to push off billions of dollars of their own liability on to the same communities they have been taking advantage of.