EPA designates 2 PFAS as CERCLA hazardous substances

The Environmental Protection Agency (EPA) finalized a rule to designate two widely used PFAS — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers — as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The rule requires entities to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity (1 pound) to the:

• National Response Center,
• State/tribal emergency response commission, and
• Local/tribal emergency planning committee.

Further, it gives EPA the authority to hold polluters responsible for paying for or conducting investigations and cleanup of PFOA and PFOS releases. In a memorandum, EPA clarified that it will focus enforcement efforts on significant contributors to PFAS releases.

Additionally:

• Federal entities that transfer or sell property must give notification about the storage, release, or disposal of PFOA and PFAS on the property and include in the deed a commitment that either:
  • Warrants it has cleaned up any contamination, or
  • If needed, it will do so in the future.
• Section 306 of CERCLA requires the Department of Transportation to list and regulate PFOA and PFAS as hazardous substances under the Hazardous Materials Transportation Act.

The rule takes effect 60 days after it’s published in the Federal Register.

Key to remember: EPA has designated PFOA and PFOS as CERCLA hazardous substances, requiring immediate release notifications for the two PFAS and expanding the agency’s authority to hold parties responsible for contamination accountable.