On April 19, 2024, the U.S. Environmental Protection Agency (“EPA”) released the pre-publication notice of its final rule designating perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  The rule will become effective 60 days after publication in the Federal Register and will have wide ranging impacts.  With the hazardous substance designation, EPA has its full enforcement authority under CERCLA to compel remedial investigations and remediation actions of PFOA and PFOS, including its authority to require additional investigation and/or remediation under five-year reviews.  This rule follows EPA issuance of final drinking water standards, or MCLs, on April 8, 2024, for PFOA and PFOS of 4 ppt.  Some of the additional changes resulting from this final rule include the ability of private parties to file contribution actions to recover response costs incurred to address PFOA and PFOS, and the requirement that Phase I Environmental Site Assessments under ASTM E-1527, which are widely used in commercial real estate transactions, consider, where appropriate, PFOA or PFOS as hazardous substances that may be the basis for recognized environmental conditions (“REC”).  In addition, following the hazardous substance designation, any release of PFOA or PFOS exceeding its reportable quantity (presumed to be one pound within a 24-hour period) must be reported to the National Response Center (past releases do not need to be reported if they are not continuing releases as of the effective date of the rule).  Additional information is available from EPA’s  FAQ.   

On the same date, EPA issued a memorandum outlining how it will use its enforcement discretion under CERCLA in matters involving PFAS, stating that the hazardous substances designation for these two PFAS “does not change the statute’s liability framework, which provides liability protections in certain circumstances for parties that are not primarily responsible.” The EPA enforcement discretion memorandum states that EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA including, but not limited to, community water systems and publicly owned treatment works, municipal separate storm sewer systems, publicly owned/operated municipal solid waste landfills, publicly owned airports and local fire departments, and farms where biosolids are applied to the land.  For these same parties, EPA indicates it will consider using its CERCLA statutory authorities when appropriate to enter into settlements that provide contribution protection for matters addressed in the settlement.  Stay tuned for further developments as EPA implements the final rule and its enforcement discretion policy.

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