October 10, 2022

Proposal to Designate PFOA and PFOS as CERCLA Hazardous Substances

On September 6, 2022, EPA proposed designating two of the most widely studied per- and polyfluoroalkyl substances (PFAS) as CERCLA hazardous substances. [87 FR 54415] These substances, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), would be regulated under CERCLA alongside approximately 800 other individual chemicals at §302.4. The proposal also applies to the salts and structural isomers of PFOA and PFOS. Comments on the proposal may be submitted through November 7, 2022 via Docket ID No. EPA-HQ-OLEM-2019-0341.

PFOA and PFOS (and thousands of other PFAS) are well-known for their non-stick properties and have been found in carpets, clothing, furniture fabrics, food packaging, and cookware. They were also used for decades in firefighting foam and numerous industrial processes. PFOA and PFOS were mostly phased out in the early 2000s, but they have no known natural biodegradation pathway and are known as “forever chemicals”. Coupled with their extensive use, the resulting environmental contamination and human exposure have become an increasing concern. An extensive body of evidence indicates exposure to these two chemicals can lead to high cholesterol, decreased immune response to vaccination, thyroid disorders, cancer, and more. Based on new data, the levels at which these adverse health effects could occur are much lower than previously understood.

In the past, CERCLA hazardous substances became listed under §302.4 because a chemical was a CWA hazardous substance or toxic pollutant, a CAA hazardous air pollutant, or a RCRA hazardous waste. EPA believes the evidence surrounding PFOA and PFOS is sufficient in its own right to satisfy the CERCLA Section 102(a) standard—for the first time, EPA would regulate chemicals as CERCLA hazardous substances directly. If this rule is finalized, it would require any person in charge of a vessel or facility to notify the National Response Center of a release of PFOA or PFOS if the release is of one pound or more over a 24 hour period. The notification requirements are detailed in §302.6. Federal agencies would also be required to comply with CERCLA Section 120(h) when selling or transferring federally-owned property. This provision mandates proper notification if any hazardous substance was stored or released from the property. Finally, the Department of Transportation would be required to list and regulate PFOA and PFOS as hazardous materials per CERCLA Section 306(a).

The indirect and downstream effects of designating PFOA and PFOS as CERCLA hazardous substances include:

EPA and state agencies exercising CERCLA authority could respond to releases and threatened releases without making the imminent and substantial danger finding required for responses.
Potentially responsible parties could be required to address PFOA and PFOS releases that pose an imminent and substantial endangerment to public health, welfare, or the environment. They could also be required to pay for associated cleanup costs rather than taxpayers footing the bill.
Private parties that conduct cleanups consistent with the National Oil and Hazardous Substances Contingency Plan could also recover cleanup costs from potentially responsible parties.

The rule would increase transparency around PFOA and PFOS releases and offer additional tools for EPA and state agencies to conduct faster cleanups.

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This document addresses issues of a general nature related to the federal environmental regulations. Persons evaluating specific circumstances dealing with the environmental regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.