EPA Hosts CERCLA PFAS Enforcement Listening Sessions

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In March, EPA hosted two public listening sessions requesting individual feedback regarding concerns about PFAS liability under CERCLA. The listening sessions follow the Agency’s August 2022 proposed rule, which would designate two of the most widely used PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). EPA  has stated that the information gathered during these sessions and any written comments submitted on the topic will be reviewed and considered in drafting its enforcement and discretion policy.

The webinars each began with presentations summarizing CERCLA, detailing the potential harms of PFAS substances, and describing EPA’s plan to issue an enforcement discretion and settlement policy. In addition to comments voiced during the webinars, EPA is reviewing written comments received on the proposed rule. The Agency stated it intends to focus enforcement efforts on manufacturers, federal facilities, and other industrial parties whose actions result in the release of significant amounts of PFAS. EPA clarified that parties that resolve their liability with EPA through settlement would not be liable for third-party claims. Therefore, settlements may provide CERCLA contribution protection to some parties. The Agency’s enforcement discretion policy will be contingent on a party’s cooperation, and it retains the ability to address any situations which present imminent and substantial endangerment.

The Agency also commented on parties against which it does not intend to pursue CERCLA enforcement for PFAS contamination, including:

  • Water utilities and publicly owned treatment works;
  • Publicly owned and/or operated municipal solid waste landfills;
  • Farms that apply biosolids; and
  • Certain airports and fire departments.

EPA further commented that enforcement discretion under this policy would be limited to CERCLA and not impact EPA enforcement actions under any other applicable statute.

EPA has posted the recordings of the sessions, which can be viewed here.

EPA Publishes ANPRM Seeking Information to Assist in Consideration of Future CERCLA Regulations Regarding PFAS

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On April 13, 2023, EPA published an advance notice of proposed rulemaking (ANPRM) seeking input and data regarding potential future hazardous substance designation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of a number of PFAS substances. The ANPRM identifies PFOA, PFOS, seven other PFAS and their salts and structural isomers, precursors to PFOA and PFOS, and several categories of PFAS as candidates for this designation.

EPA is requesting public input to assist in the potential development of future regulations under CERCLA Section 102(a). Section 102(a) authorizes the EPA Administrator to promulgate regulations designating as hazardous substances that, when released into the environment, may present a substantial danger to the public health or welfare or the environment. The seven PFAS for which EPA is requesting input on are:

  • Perfluorobutanesulfonic acid (PFBS), Chemical Abstracts Service Registry Number (“CAS RN”) 375-73-5;
  • Perfluorohexanesulfonic acid (PFHxS), CAS RN 355-46-4;
  • Perfluorononanoic acid (PFNA), CAS RN 375-95-1;
  • Hexafluoropropylene oxide dimer acid (HFPO-DA), CAS RN 13252-13-6 (sometimes called GenX);
  • Perfluorobutanoic acid (PFBA), CAS RN 375-22-4;
  • Perfluorohexanoic acid (PFHxA), CAS RN 307-24-4; and
  • Perfluorodecanoic acid (PFDA), CAS RN 335-76-2.

Regarding these seven PFAS, EPA solicited the following information:

  • Published scientific literature regarding the environmental fate and transport.
  • Information that EPA could consider in preparing an economic analysis of the potential direct and indirect costs and benefits associated with a potential rulemaking designating any of the above-mentioned compounds as hazardous substances.

Regarding information around the PFAS precursors, EPA is requesting the following :

  • Published scientific literature or data regarding the environmental degradation of the precursors to PFOA, PFOS, PFBS, PFHxS, PFNA, HFPO-DA, PFBA, PFHxA, and/or PFDA.
  • Published scientific literature that characterizes the environmental prevalence of these substances.
  • Methods for measuring these substances in environmental samples.

EPA is also requesting information to help inform its decision-making on whether to designate further PFAS groups or categories as hazardous substances under CERCLA. It is requesting information on published scientific literature that can inform whether categories of PFAS could be designated as hazardous substances:

In addition, EPA asked for input on whether there are other PFAS that the Agency could consider designating as hazardous substances in a possible future rulemaking. The ANPRM requests references to published scientific information these on the hazards for substances that commentors identify in response to this request.