EPA Designates PFAS Compounds as Hazardous Substances under Superfund Law

Today, the Environmental Protection Agency (“EPA”) announced its long-awaited final rule (“Final Rule”) designating a pair of PFAS compounds – PFOA and PFOS – as “Hazardous Substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), also known as the Superfund law. This significant regulatory action follows quickly on the heels of EPA’s new rule forth the first legally enforceable set of National Drinking Water Standards, which provides Maximum Contaminant Level Goals for several PFAS and GenX compounds. 

As set forth in greater detail in our prior article discussing the then-proposed rule, CERCLA (1) provides a mechanism for EPA to track certain pollutant spills and hold Potentially Responsible Parties (“PRPs”) accountable by bringing enforcement actions by forcing PRPs to either perform the necessary investigation and cleanup or to reimburse EPA its costs for an EPA-led investigation and cleanup; and (2) creates private rights of recovery for contribution and cost recovery for costs incurred by those parties in remediating contaminated sites. By its terms, CERCLA is limited in applicability to discharges of “Hazardous Substances,” as that term is defined.

The Final Rule represents a significant moment in EPA’s ongoing efforts to address PFAS contamination. Per- and polyfluoroalkyl substances are a cluster of thousands of man-made chemical compounds that have been in large-scale industrial and consumer use for roughly 70 years and have historically been put to a broad range of uses, from Aqueous Film Forming Foams (fire suppressants) to textile applications and non-stick coatings. These compounds, which do not break down naturally in the environment, have been linked to human health risks. 

The Final Rule requires that persons – including entities – must report to EPA new releases of PFOA and PFOS that meet or exceed reportable quantity limitations. Per EPA, “[a]ny entity that releases a pound or more of PFOA or PFOS, or their salts or structural isomers, in any 24-hour period must report those releases consistent.” The Final Rule includes a reporting requirement for ongoing releases, but – importantly – there is no reporting requirement for past releases as long as they are not continuing release as of the effective date of the Final Rule. 

Commercial and industrial entities which do or may use, store, generate, or dispose of potential PFAS-containing products and materials should take special note of these new regulatory provisions.