On April 19, 2024, EPA announced the final rule designating two PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund program. The PFAS covered by the new pending rule include perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) and their respective salts and structural isomers. PFOS and PFOA are historically two of the most common and widely used forms of PFAS. Their direct use has been mostly phased out in the United States, however many other PFAS can degrade to PFOS and PFOA. These two compounds are also persistent in industrial equipment, water, soil, and other media from historic presence. The EPA concluded that designation is warranted due to the substantial danger that PFAS present to public health, welfare, and the environment with potential effects including cancer, reproductive, developmental, cardiovascular, and immunological issues in humans and animals.
CERCLA hazardous substance designation will enable EPA (and other agencies with delegated CERCLA authority) to address more sites, take earlier action, and expedite cleanup, while also improving transparency around releases of PFAS and holding polluters financially accountable for any contamination caused. Under this 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.
In the most simple terms this rule requires industrial facilities to:
- Have the ability to quantify PFAS releases to the environment
- Consider liability of PFAS contamination at their site
Who is impacted by this rule?
In addition to the final rule, the EPA is also issuing a PFAS Enforcement Discretion and Settlement Policy Under CERCLA, which states that consistent with CERCLA’s objectives, EPA will focus its enforcement efforts on entities who significantly contribute to the release of PFAS contamination, namely, parties which manufacture PFAS or use PFAS in the manufacturing process, federal facilities, and other industrial parties. Some examples of potentially affected entities include the below:
- Aviation operations
- Carpet manufacturers
- Car washes
- Chemical manufacturing
- Chrome electroplating, anodizing, and etching services
- Coating, paints, and varnish manufacturers
- Firefighting foam manufacturers
- Landfills
- Medical devices
- Fire departments and training centers
- Paper mills
- Pesticides and insecticides
- Petroleum and coal product manufacturing
- Petroleum refineries and terminals
- Photographic film manufacturers
- Polish, wax, and cleaning product manufacturers
- Polymer manufacturers
- Printing facilities where inks are used in photolithography
- Textile mills (textiles and upholstery)
- Waste management and remediation services
- Wastewater treatment plants
However, based on equitable factors, EPA will exercise its enforcement discretion to not pursue PFAS response actions or costs against the following parties:
- Community water systems and publicly owned treatment works (POTWs)
- Municipal separate storm sewer systems (MS4s)
- Publicly owned/operated municipal solid waste landfills
- Publicly owned airports and local fire departments
- Farms where biosolids are applied to the land
Enforcement will be deferred for these source types primarily because they are passive receivers of PFAS, provide a municipal public service, or do not directly manufacture PFAS or use PFAS in an industrial process.
Implications for due diligence in property transactions
The new rule to designate PFOA and PFOS as hazardous substances also has significant implications for environmental due diligence in Phase I Environmental Site Assessments (ESA). Now, with the finalization of this rule, PFOA and PFOS are subject to the same level of scrutiny as the other listed CERCLA hazardous substances. The presence of these substances could result in establishing Recognized Environmental Conditions (RECs) on the property, leading to extensive cleanup efforts and strict liability for property owners. RECs are further investigated in a Phase II ESA which samples soil and groundwater to determine if contamination is present in the areas of concern and posing an environmental health risk. High concentrations of hazardous substances may require remediation.
PFAS are a family of thousands of compounds. PFOA and PFOS are only two of the thousands of PFAS in existence. Other PFAS beyond PFOA and PFOS are addressed in the ASTM E1527-21 Standard Practice as “emerging contaminants” that are non-scope considerations for a Phase I ESA. Non-scope considerations, though useful in identifying issues that may create environmental risks within a property, are not required to be assessed under the EPA’s All Appropriate Inquiries (AAI) rule to claim a CERCLA liability defense. Non-scope considerations are potential environmental conditions at a property that do not directly impact CERCLA liability but may be otherwise relevant, such as compliance with state-specific PFAS regulations in soil, groundwater, and other environmental discharges.
A Phase I ESA considering PFOA and PFOS under CERCLA, or other PFAS as non-scope considerations, should consider if the property has ever been engaged in activities with a risk for PFAS usage. The list of potentially affected entities provided earlier in this article gives some examples of activities with an elevated PFAS risk.
Facility-specific PFAS risk management
Trinity anticipates that final publication of the rule will only increase future litigations and potential cleanup costs related to PFAS, especially in real estate transactions of previously reviewed properties. Trinity has a dedicated group of practitioners focused on due diligence and Phase I ESA projects that is closely following the implications of this new PFAS rule under CERCLA. If you would like to discuss potential PFAS issues, liability at your facilities, or how to get ahead of future enforcement actions, please contact your local Trinity office or John Goetze ([email protected]) or Steve Walters ([email protected]).
Trinity’s large team of environmental consultants routinely assists clients in completing strategic analyses and assessments associated with facility expansions, compliance interpretations, and regulatory risk management. This customized content comes in various forms including memos outlining permitting impact options, regulatory white papers, business processes mapping, and site-specific monitoring plans. Trinity’s internal Knowledge Management System, a state-of-the-art information technology platform, is an invaluable tool for executing strategic compliance projects. The system enables our consultants to access institutional knowledge through the real time exchange of information and thereby leverage the depth and breadth of our environmental expertise across hundreds of consultants to help our clients make sound business decisions.
There are a multitude of PFAS regulations in development that will impact facilities in a wide variety of industries that currently use PFAS or have had historic usage. Trinity is experienced and well suited to guide facilities through PFAS investigations on a detailed site-specific basis. Our industrial knowledge and PFAS expertise enable our teams to pinpoint exactly where to look for PFAS and then evaluate potential regulatory and liability considerations. Typical recommendations for facilities involve reviewing new product formulations; examining and managing releases to air, water, and solid waste; and establishing data gathering procedures to track PFAS onsite.
