Regulation Imposes New Reporting Requirements and Opens the Door for Investigation and Clean-up Activities
On April 19, 2024, the U.S. Environmental Protection Agency (EPA) issued a regulation designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and their salts and isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), otherwise known as Superfund. This regulation marks the first time EPA has regulated a contaminant directly under CERCLA.
The rule will enable federal and state regulators to require the investigation and cleanups of PFOA and PFOS contaminated sites and pursue financial accountability from responsible parties to cover cleanup costs.
Reporting Requirements
The regulation requires reporting on releases of PFOA and PFOS, or their salts and isomers, that meet or exceed the designated reportable quantity (RQ), which EPA has designated at one (1) point each. The RQ is the amount of a hazardous substance that, once released in any 24-hour period, triggers the following reporting requirements:
- Immediate Notification to the National Response Center, State or Tribal Emergency Response Commission, and Local or Tribal Emergency Planning Committee;
- Continuous Release Reporting for releases that are stable in quantity and rate, consistent with 40 CFR 302.8;
Provide a notice of hazardous substance release to potentially injured parties through publication in local newspapers of the areas affected; - Within 30 days of a reportable release, owners and operators of a facility must submit a follow-up written report to the National Response Center, State or Tribal Emergency Response Commission, and Local or Tribal Emergency Planning Committee
Legal Considerations
CERCLA’s core principle follows the “polluter pays” framework in which polluters, known as “potentially responsible parties” (PRPs), pay for the costs of cleanup they created. CERCLA defines PRPs as:
- Past and present owners of a facility where hazardous substances occur;
- Past and present operators of a facility;
- Those who arrange for the disposal or treatment of hazardous substances at a facility; and
- Transporters of hazardous substances to a facility.
The designation of PFOA and PFAS as hazardous substances has the potential to extend CERCLA liability to public entities that own, operate, and manage municipal stormwater systems; treat and distribute water in accordance with stringent standards and permits set forth by the Clean Water Act and Safe Drinking Water Act; collect, treat, and discharge wastewater under National Pollutant Discharge Elimination System (NPDES) permits; and manage the biosolids that naturally produced as a result of the wastewater treatment process. These entities are all passive receivers of PFAS and do not intentionally create or add PFAS into their treatment systems. However, without action by Congress, passive receivers are not protected from the inclusion in litigation and cleanup costs by PRPs and citizen groups.
To mitigate this, and in conjunction with the Final Rule, EPA released the PFAS Enforcement Discretion and Settlement Policy Under CERCLA (Discretionary Enforcement Policy). Under this policy, the EPA seeks to focus liability on major PRPs, which EPA defines as those that have significant releases or added to the spread of PFAS into the environment, including manufacturers of PFOA and PFOS and those that use PFOA and PFOS in the manufacturing process, as well as additional industrial parties. In addition to major PRPs, EPA seeks to hold federal agencies and facilities accountable for contamination of PFOA and PFOS.
In the Discretionary Enforcement Policy, the EPA states that it does not intend to include in PRPs where it is not equitable. The EPA identified equitable parties as:
- Community water systems and publicly owned treatment works;
- Municipal separate storm sewer systems (MS4s);
- Publicly owned/operated municipal solid waste landfills;
- Publicly owned airports and local fire departments; and
- Farms where biosolids are applied to the land.
To best adhere to this goal and protect these five groups, the EPA hopes to enter into settlement agreements with major PRPs and include within each settlement agreement provisions that would require the major PRP to waive its rights to sue those that meet the definition of an equitable party for items addressed in the settlement agreement.
The Discretionary Enforcement Policy lays out the following factors that EPA will consider when determining who to seek response and cleanup costs from:
- Whether the entity is a state, local, or Tribal government or works on behalf of or conducts a service that otherwise would be performed by a state, local, or Tribal government.
- Whether the entity performs a public service role in:
- Providing safe drinking water;
- Handling of municipal solid waste;
- Treating or managing stormwater or wastewater;
- Disposing of, arranging for the disposal of, or reactivating pollution control residuals (e.g., municipal biosolids and activated carbon filters);
- Ensuring beneficial application of products from the wastewater treatment process as a fertilizer substitute or soil conditioner; or
- Performing emergency fire suppression services.
- Whether the entity manufactured PFAS or used PFAS as part of an industrial process.
- Whether, and to what degree, the entity is actively involved in the use, storage, treatment, transport or disposal of PFAS.
While the EPA’s new policy does not intend to pursue those that meet the factors to be an equitable party, it is important to note that this is discretionary policy. Therefore, it is subjective in terms of enforcement and permanence.
The National Priorities List
The designation of PFOA and PFOS, and their salts and isomers, does not automatically create Superfund sites. To become a site, EPA evaluates and scores it based on the Hazard Ranking System. From there, EPA determines whether or not it is eligible for the National Priorities List (NPL). Once listed, EPA has the discretion cleanup the site under superfund or to utilize other cleanup alternatives such as state cleanup, cleanup by other federal agencies, removal action, deferral to another EPA program, like RCRA, or other enforcement measures.
Conclusion
While the EPA was crafting this rule, EPA finalized the rule creating Maximum Contaminant Levels (MCLs) for six PFAS chains, proposed listed specific PFAS chains under the Resource Conservation and Recovery Act (RCRA), and released interim disposal and destruction guidance for PFAS chains. Still, a lot of uncertainty remains, such as the level of clean-up that EPA will impose.
EPA’s Discretionary Enforcement Policy lays out a noble plan to protect equitable parties. However, Congress will need to act to ensure their protection. BBK is working diligently on this issue for our clients. To find out more information on how we are advancing these protections, please contact one of the authors of this alert.
Click here to view the Pre-Publication Version of the new regulation.
Contact the BBK authors of this alert if you have questions regarding this regulation.
Authored by BBK Director of Government Affairs and Of Counsel Ana D. Schwab and Partners Shawn D. Hagerty and Andre Monette
Disclaimer: BBK Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.
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