On April 19, 2024, the US Environmental Protection Agency (EPA) issued a final rule that designates two PFAS chemicals – PFOA and PFOS – as ‘hazardous substances’ subject to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as Superfund). The rule will take effect under CERCLA, giving the EPA increased authority to investigate and respond to PFAS contamination and seek recovery of costs associated with cleanup efforts. The EPA sees the new rule as a significant step in its regulation of PFAS.
What are PFAS chemicals?
Per- and polyfluoroalkyl substances (PFAS) are a class of human-made substances that typically break down slowly over time, earning them the nickname ‘forever chemicals’. A variety of industrial and consumer products have utilized perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) – the two newly designated hazardous substances under CERCLA – since the 1940s, including fire retardants, nonstick cookware, water-resistant clothing, stain-resistant fabrics, food packaging and cleaning products, among others.
What is CERCLA (Superfund) and what has changed?
CERCLA, also known as Superfund, was established in 1980. The law allows the EPA to initiate the investigation and cleanup of contaminated sites. To fund those activities, CERCLA requires parties responsible for the contamination to either perform the cleanup or reimburse the government for EPA-led cleanup work.
PFOA and PFOS are the first and only PFAS to be designated as hazardous substances under CERCLA. Prior to this designation, the EPA could only respond to a release of these substances on a finding that PFOA and PFOS ‘present[ed] an imminent and substantial danger’. Now, the EPA will have authority to investigate and/or respond to PFOA and PFOS releases with broad discretion.
The EPA also will be able to seek cost recovery for cleanup efforts from the parties responsible for the presence of PFOA and PFOS, as well as use enforcement measures. Overall, the EPA believes that this designation will enable it (and other agencies with CERCLA authority) to ‘address more sites, take earlier action, and expedite eventual cleanup’.
Additionally, companies releasing PFOA and PFOS will be required to immediately report any releases of PFOA and PFOS greater than one pound within a 24-hour period to the EPA National Response Center (NRC) and state, tribal and local emergency responders.
Alongside the rule, the EPA released a PFAS Enforcement Discretion and Settlement Policy Under CERCLA, which clarifies that enforcement will be focused on entities that significantly contribute to the release of PFAS into the environment – such as PFAS manufacturers, manufacturers that use PFAS in their processes, federal facilities and other industrial parties. The policy also clarifies that operations for the public interest are not generally an enforcement target – i.e., water utilities, airports, fire departments, landfills and farms.
What comes next?
The PFAS Superfund rule issuance is another piece of the EPA’s PFAS Strategic Roadmap, which it first announced in October 2021. It follows the agency’s October 2023 final rule under the Toxic Substances Control Act (TSCA), Section 8(a)(7), which requires any company that has manufactured or imported PFAS or articles containing PFAS since 2011 to submit a report regarding its PFAS uses, production volumes, disposal, exposures and hazards by May 2025.
Please reach out to the Cooley team listed below with any questions regarding PFAS in consumer products.
