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9/30/22
EPA Proposes to List PFOA/PFOS as Hazardous Substances Under CERCLA
On September 6th, the U.S. Environmental Protection Agency (EPA) published its intent to regulate two of the thousands of per- and polyfluoroalkyl Substances (PFAS), namely perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) -- including salts and structural isomers -- under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly known as the “Superfund” law. PFOA and PFOS are the two compounds that have been taken out of production in the United States, but the retroactive nature of Superfund enforcement is still a concern. On August 25th, EPA Administrator Michael Regan signed a pre-publication notice of the proposed rule, with a preview of the Federal Register Notice including justifications for the action as this is the first time EPA has exercised its authority under Section 102(a) of CERCLA.
In a presentation by the EPA in late August the agency acknowledged there were concerns about liability for public entities if PFOA and PFOS are listed under CERCLA. The EPA said it would be looking to responsible parties, manufacturers or those releasing significant amounts of these PFAS into the environment, and would use its enforcement discretion to ensure fairness to minor parties and inadvertent impacts on public entities. EPA also stressed that it was committed to outreach and engagement with wastewater treatment facilities, farmers, and others impacted by the rule.
EPA had previously stated its intent to designate certain PFAS as hazardous substances under CERCLA, under the purview of the Office of Land and Emergency Management, as stated in its PFAS Strategic Roadmap issued in October 2021. Nonetheless, the implications are not fully understood, and industry groups are planning to request more time to provide comment on this latest EPA regulatory action on PFAS. As part of outreach on this particular action, EPA also stated its intent to issue an advanced notice for proposed rulemaking to designate other PFAS chemicals as hazardous substances under CERCLA.
Designation of a substances as hazardous under section 102(a) of CERCLA will trigger notification requirements for the release of greater than one pound of PFOA or PFOS in a 24 hour period. It also requires notification upon sale or transfer of a government property where PFAS has been stored or released.
The National Association of Clean Water Agencies (NACWA) and others broke down the action for its members. NACWA reassures wastewater treatment facilities that it's highly unlikely they would trigger reporting requirements under CERCLA. There are also current exemptions for fertilizer and federally permitted releases. However, since CERCLA is a strict and joint and several liability statute (even though EPA has said it does not intend to seek CERCLA cleanup costs from public water utilities) private sector parties can drag utilities into a legal action. Water utilities, and now landfill operators and others managing waste materials, have been asking for specific exemptions for their operations. The concern is that some of the actions of water utilities fall under the “disposer” umbrella of CERCLA which carries significant legal and financial liabilities.
Bottom line, you need to know what’s coming into your waste streams. Do some back-of-the envelope calculations just to be sure. Estimate or measure PFAS levels in influent, effluent, and sludges/biosolids. Knowing what you are managing is key but the concern for liability once you know is real. NACWA recommends checking your state laws and regulations to see if there are any implications from a federal CERCLA designation; some states have automatic triggers. It’s also possible that the EPA could lower the 24-hour Reportable Quantity in the future as it studies and collects more information on these compounds.
EPA makes it clear in the Federal Register notice that they are not required to consider costs, citing case law:
“EPA proposes to interpret the language of CERCLA section 102(a) as precluding the Agency from taking cost into account in designating hazardous substances. Congress did not list cost as a required or permissible factor.”
“The Agency is soliciting comment on that interpretation and, if costs should be considered, how they should be considered.” See section IV.B under Legal Authority
EPA will be looking for input on that issue, including indirect costs incurred as a result of the hazardous substance designation. Direct costs related to reporting requirements are not a lot. If disposing of PFAS-contaminated materials results in higher disposal costs, the impacts on wastewater treatment facilities’ biosolids programs could be enormous. In earlier report by NEBRA, NACWA and the Water Environment Federation (WEF), the average increase was 37% but today it’s up to 72%, and according to the report’s author, CDM Smith, even higher in Maine where biosolids are being forced to go to landfills.
NEBRA plans to comment in a joint letter from all the biosolids associations. The deadline to comment is November 7th.