September 12, 2022
Designating PFOA and PFOS as hazardous substances under CERCLA may have far reaching impacts beyond sectors originally identified
On Aug. 25, the Environmental Protection Agency released its preproposal to designate two specific per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) — as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as CERCLA or Superfund.
While the current proposal would only affect activity regulated under CERCLA, such as spill reporting and investigations and cleanups of PFOS and PFOA-impacted sites, the implications of designating PFOA and PFOS as hazardous are expected to spread across the economy via other rules and regulations. As PFOA and PFOS are found both in many products and at low levels throughout the environment, the consequences of this CERCLA designation are uncertain and may apply more broadly than suggested by the designation itself.
The "hazardous" designation
The term "hazardous" is used in many federal and state laws and regulations to describe a wide range of chemicals. In addition to CERCLA, examples of federal regulatory frameworks using the term include the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Clean Air Act; the term is also used in Department of Transportation and Occupational Safety and Health Administration regulations.
This designation may trigger actions under these other rules, affecting sites impacted by PFOS and PFOA, as well as industrial facilities that emit these chemicals. It does not appear that this hazardous substance designation would apply to the Toxic Substances Control Act or other federal agencies, such as the Food and Drug Administration, which regulate food, pharmaceuticals, and cosmetics.
Definitions of "hazardous" differ, but each rule creates responsibilities (e.g., reporting, permitting requirements, etc.) and potential liability for entities subject to these regulations.
Some regulations include lists of hazardous substances, while many point generally to compounds identified as hazardous by other laws or regulatory agencies. States typically incorporate federal designations, though some have separately defined hazardous substances through state-level regulations.
EPA's first use of CERCLA authority
EPA stated this would be the first time it has used its authority under CERCLA to designate a hazardous substance. Typically, CERCLA liability derives from compounds identified as hazardous under laws such as RCRA or the CWA. For example, all hazardous substances under the CWA are hazardous substances under CERCLA, but the opposite is not always true.
In this case, as it is the first time EPA is using its CERCLA authority, it is unclear how the designation of PFOA and PFOS as hazardous under CERCLA would impact responsibilities and potential liability under RCRA and the CWA. How and when regulators may incorporate the new designation into these and other areas of responsibility has not been established.
The proposed rule is expected to be published in the Federal Register in September with a comment period of 60 days. Given the complexity of the issue, the comment period may be extended.
How Exponent Can Help
Exponent's multidisciplinary team of PFAS experts closely monitors the continually changing regulatory landscape for PFAS, and we are equipped to offer guidance and resources to help clients adapt to policy interpretations and changes in the market. We are well versed in understanding the PFAS life cycle, and we are actively involved in helping clients understand how these regulatory changes surrounding PFAS may affect their business, including helping clients prepare appropriate technical comments. Our multidisciplinary team of analytical, forensic, and polymer chemists, environmental engineers, ecologists, and health scientists can help companies and their operating entities assess the presence and potential risks and liabilities associated with PFAS at their facility, in their products, and in their resulting waste streams.