On May 8, 2024, EPA published its final rule to designate perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or “Superfund.” The rule will have become effective on July 8, 2024.

This first-time designation will allow EPA to quickly respond to, and clean up, releases of PFOS and PFOA, and hold companies that sent materials containing PFOS and PFOA to the site (i.e., known as potentially responsible parties or “PRPs”) liable for cleanup costs. In addition, private parties that clean up releases of PFOS and PFOA will now be able to recover cleanup costs from other potentially responsible parties. 

Reporting Requirements

The rule also requires companies to immediately report releases of PFOS and PFOA that meet or exceed the reportable quantity of 1 lb. within a 24-hour period to the National Response Center. Companies do not need to report past releases of PFOS or PFOA, unless the release continues as of the effective date of the rule. 

For most metalcasting operations, a single release of 1 lb. of PFOS or PFOA would be unlikely.

Even Small Releases Could Trigger Large Cleanup Costs 

Contamination from even very small releases of these chemicals can trigger significant liabilities and expensive cleanups under CERCLA. PFOS and PFOA are ubiquitous and are also found in surfactants, lubricants, cleaners, packaging, certain coatings, fire-fighting foams, and other products that may have been used or processed at a wide range of industrial facilities. 

Cleanup levels could be set at single-digit parts per trillion (ppt), as evidenced by EPA’s recent final drinking water standard for PFOS and PFOA set at 4 ppt. This would include cleanup of contamination from releases at industrial facilities or at off-site facilities where industrial operations may have sent materials containing PFOS or PFOA. 

CERCLA is widely viewed by U.S. industry as an expensive, ineffective, and unworkable means to achieve effective remediation for these chemicals. CERCLA is fraught with unintended consequences and will likely result in extensive, unnecessary delays for cleanups. Industry groups have argued that there are more effective and timely means to address potential site remediation through existing regulatory processes.

Potential Economic Impact 

Legal responsibility for cleanup costs of even small releases of PFOS or PFOA could, however, be substantial. Furthermore, treatment and destruction technology for addressing releases of PFOS and PFOA are expensive and many are unproven to meet stringent cleanup levels. 

The Environmental Business Journal has estimated that remediation costs could exceed over $200 billion over the next 20 years across all U.S. industry sectors. The Department of Defense has estimated that its cleanup costs could be as much as $2 billion annually. 
EPA Enforcement Discretion Guidance

The PFOS and PFOA hazardous substance designation could also raise potential impacts on small business and municipalities. Accordingly, EPA issued an enforcement discretion guidance with the final rule to minimize the potential impacts on small businesses and municipalities. 

Pursuant to this guidance, EPA will not be pursuing enforcement against various stakeholders including publicly-owned treatment works (POTWs), municipal sewer authorities, cities, municipal airports, landfills, fire stations, and agriculture operations where biosolids where applied. 

The enforcement discretion guidance may provide some relief from EPA’s cost recovery actions, but it cannot protect companies from third-parties seeking contribution for Superfund cleanup costs from all PRPs, which could include substantial liability.
Possible Relief for “Passive Receivers” 

Recognizing that Superfund liability is overly broad and could impose unintended consequences on many public utilities, Congress is considering some possible legislative exemptions from Superfund liability for certain “passive receivers” of PFOS and PFOA. Currently these efforts are limited to landfills, drinking water agencies, POTWs, and some farmers that received contaminated biosolids from POTWs to be used as fertilizer. 

Potential relief through narrow carveouts for “passive receivers” is not widely supported by a broad range of industry stakeholders, because it would increase Superfund liability for the remaining PRPs. Accordingly, if there are to be any exemptions for “passive receivers” (which is not certain at this point), they would likely be limited to public utilities and farmers.

Legal Challenges Are Expected 

Legal challenges to the final rule are expected from industry trade groups, agriculture organizations, public utilities, and other stakeholders. The challenges will likely focus on the overly broad application of Superfund liability, its impact on small business and public utilities, and whether EPA met its statutory and other legal requirements in designating PFOS and PFOA as Superfund hazardous substances. 

This rule is the first time that EPA has designated new substances as hazardous substances and will set precedent for future hazardous substance designations. 

As with most legal challenges to final EPA regulations, success is uncertain and faces many legal and policy obstacles.