PFAS CERCLA Designation Wheels in Motion

On September 6, 2022, a proposed rule was published to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances. Comments on the proposed rule in the Federal Register will be accepted for 60 days, ending on November 7, 2022.

If finalized, the designation would require that releases of these chemicals in excess of one pound over a 24-hour period be reported to the federal, state, tribal, and local authorities. Once the federal agency learns of a release or potential threat of a release, CERCLA authorizes response in one of three ways:

1. By determining no action at the federal level is warranted
2. By undertaking a removal action (if the situation presents a more immediate threat)
3. By assessing the relative risk of the release in comparison to other releases via the National Priorities List (NPL), which is the first step towards a longer-term remedial action

This rule has also identified the various entities that may be affected by this action. These include:

• PFOA and/or PFOS manufacturers (including importers)
• PFOA and/or PFOS processors
• Manufacturers of products containing PFOA and/or PFOS
• Downstream product manufacturers and users of PFOA and/or PFOS products
• Waste management and wastewater treatment facilities

As general guidance, the Environmental Protection Agency (EPA) also provides a list of North American Industrial Classification System (NAICS) codes that this rule may be applicable to, which are included below.

NAICS code	List of potentially affected US industrial entities
488119	Aviation operations.
314110	Carpet manufacturers.
811192	Car washes.
325	Chemical manufacturing.
332813	Chrome electroplating, anodizing, and etching services.
325510	Coatings, paints, and varnish manufacturers.
325998	Firefighting foam manufacturers.
562212	Landfills.
339112	Medical Devices.
922160	Municipal fire departments and firefighting training centers, including federal agencies that use, trained with, and tested firefighting foams.
322121 and 322130	Paper mills.
325320	Pesticides and Insecticides.
324	Petroleum and coal product manufacturing.
324110 and 424710	Petroleum refineries and terminals.
352992	Photographic film manufacturers.
325612	Polish, wax, and cleaning product manufacturers.
325211	Polymer manufacturers.
323111 and 325910	Printing facilities where inks are used in photolithography.
313210, 313220, 313230, 313240, and 313320	Textile mills (textiles and upholstery).
562	Waste management and remediation services.
221320	Wastewater treatment plants.

In addition, when selling or transferring federally-owned real property, federal agencies would be required to meet all of the property transfer requirements in CERCLA section 120(h), including providing notice when any hazardous substance “was stored for one year or more”, or was “known to have been released, or disposed of” and providing a covenant warranting that “all remedial action necessary to protect human health and the environment with respect to any [hazardous substances] remaining on the property has been taken before the date of such transfer, and any additional remedial action found to be necessary after the date of such transfer shall be conducted by the United States.” There would also be an obligation for the Department of Transportation (DOT) to list and regulate PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act (HMTA) (see CERCLA Section 306(a)).

Under the proposed rule, EPA and delegated agencies could also require potentially responsible parties to address PFOA or PFOS releases that pose an imminent and substantial endangerment to public health or welfare or the environment. Cleanup costs could be recovered from potentially responsible parties to facilitate remediation, rather than putting the burden on taxpayers or private property owners. The EPA is asking that this hazardous substance designation exclude consideration of costs and be based on known science and adverse health effects. However, the EPA is accepting comments regarding if costs should be considered, and how they should be considered, when designating PFOA and PFOS as hazardous substances.

Well documented adverse human health effects are associated with PFOA and PFOS exposure and impacts from the proposed rule are expected to result in direct public health benefits.

The regulated community has been slow to move on the remediation of PFAS without a designation as a hazardous substance, and for good reason; opening the proverbial “can of worms” can be a risky undertaking. With the publication of its Health Advisories for PFAS in drinking water back in July, preceded by several other PFAS and PFOS/PFOA-related regulations laid out on its Strategic Roadmap, EPA has demonstrated that they will progressively regulate these substances to protect human health and the environment. The proposed rule, if passed, is likely to have a sweeping impact to the due diligence process. Based on the initial estimate in PFAS Strategic Roadmap (see page 19) the EPA expects to publish the CERCLA designation rule as final in Summer of 2023, but, the proposed rule was projected for Spring 2022, so we may be more likely to see a final rule in Fall 2023.

To learn more about how Apex can help with your PFAS challenges, please visit our Remediation page and check out our Case Studies. For specific questions or to speak to an expert, contact us today!