CERCLA Designation of PFOA and PFOS: Impact on Passive Receivers and the Renewed Debate on Defining PFAS

Key Points

• EPA designates PFOA and PFOS as hazardous substances under CERCLA.
• The congressional response includes expressions of concern about the breadth of the rule and its impact on “innocents.”
• The rule has spurred the introduction of several bills relating to PFAS, re-opening opportunities to comment on the definition of the class of chemicals.

Last week, the Environmental Protection Agency (EPA) finalized its rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The rule, first proposed in September 2022, requires entities to report releases of PFOA and PFOS that meet or exceed reportable quantities to federal, state or tribal agencies as soon as they have knowledge of any such release. It facilitates an increase in the pace of cleanups of affected sites. EPA will now be able to conduct response actions if there is a release or threatened release of the designated per- and polyfluoroalkyl substances (PFAS) without having to establish an imminent and substantial danger to public health or welfare. In addition, EPA will also be able to recover costs from potentially responsible parties and require potentially responsible parties to conduct the cleanup themselves.

While there could be wide-sweeping effects from the action, the congressional response bears watching. EPA’s move sparked a number of legislators to respond with concerns and promises to resolve those concerns with legislation. Perhaps of greatest import, legislators voiced concerns over the burden created by the rule on “innocents,” given CERCLA’s strict liability framework. In particular, they expressed worry that passive receivers of PFAS including water utilities, waste treatment plants and landfills will end up bearing a disproportionate amount of the cost of cleanup. Sen. Shelley Moore Capito (R-W.Va.), Ranking Member of the Environment & Public Works Committee, expressed concern that the rule “puts local communities and ratepayers on the hook for PFAS contamination they had nothing to do with in the first place” and vowed to respond. Separately, Sen. Dick Durbin (D-IL) and Rep. Betty McCollum (D-MN) raised similar concerns and introduced the Forever Chemical Regulation and Accountability Act, which, while imposing reporting requirements on users and manufacturers of PFAS and requiring the phase-out of PFAS in certain products, excludes from those requirements entities that receive PFAS in the normal course of their operations, including solid waste management facilities, composting facilities, treatment works and public water systems.

The response from the Hill offers opportunities for stakeholders to get involved and may even offer another bite at the apple of “what is a PFAS?” Last year, the Senate Environment and Public Works Committee released a bipartisan discussion draft PFAS bill aimed at mitigating and remediating PFAS contamination that targeted non-polymeric PFAS and human-made side-chain fluorinated polymers while exempting PFAS that are less mobile in the environment. If the view is that EPA overstepped, similar efforts may get an unexpected boost. This could prove critical to industries that rely on these latter fluoropolymers, including the clean energy, electric vehicles, medical device and microchip businesses.

We are closely tracking the regulation of PFAS to provide regular updates. For questions on how the changing regulatory landscape may affect your business, please reach out to the contacts listed below.