On April 19, 2024, The U.S. Environmental Protection Agency issued a final rule that designates two commonly used per-and polyfluoroalkyl substances (PFAS) chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund.
In addition to the final rule, EPA is issuing a separate CERCLA enforcement discretion policy that makes clear that EPA will focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.
EPA is taking this step to designate PFOA and PFOS under CERCLA because both chemicals meet the statutory criteria for designation as hazardous substances. Under the rule, entities are required to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound within a 24-hour period to the National Response Center, State, Tribal, and local emergency responders.
When asked about the reaction to this latest rule, the American Chemistry Council released these comments to Chemical Processing:
“EPA’s announcement is a focused effort at two specific substances that have not been produced in the U.S. in almost a decade.
“We support strong, science-based regulations that are protective of public health and the environment. However, the scientific justification EPA uses for this action is severely flawed. EPA’s basis for the health effects of these chemistries has been undercut by peer-reviewed research, and EPA’s own Science Advisory Board severely criticized much of the underlying science EPA is relying upon.
“Furthermore, CERCLA is an expensive, ineffective, and unworkable means to achieve remediation for these chemicals. CERCLA is fraught with unintended consequences and will likely result in extensive, unnecessary delays for cleanups. There are more effective and timely means to address potential site remediation through existing regulatory processes.
“EPA has also released separate Enforcement Discretion Policy Guidance stating that it will not seek enforcement of the CERCLA regulations on a range of stakeholders, including publicly owned water treatment facilities, publicly owned airports and others. However, this does not address the significant costs and impacts that these entities will still be subject to because of the complex nature of CERCLA. This includes increased management and litigation costs. It is for these reasons that CERCLA is not a workable tool to address this issue and will have unintended consequences for a broad range of stakeholders.”
“We strongly oppose this action by EPA and believe this will undermine overall remediation efforts.”
