The Environmental Protection Agency (EPA) has taken a slew of actions over the last month to directly address per- and polyfluoroalkyl substances (PFAS). PFAS are manufactured chemicals that have been used in industry and consumer products since the 1940s. PFAS are used in a myriad of products, including, among others, stain or water repellant products, non-stick products, food packaging, fire extinguishing foam, and chrome plating. Exposure to PFAS has been linked to several health impacts, including cancers, impacts to the liver and heart, and immune and developmental damage to infants and children. All of the recent EPA actions discussed below are part of the EPA’s broader PFAS Strategic Roadmap, developed in 2021.
EPA Interim Guidance on the Destruction and Disposal of PFAS
The EPA released Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances for public comment on April 8, 2024. The updated guidance identifies current effective methods to remediate, dispose of, and destroy PFAS and materials containing PFAS. It focuses on three large scale capacity technologies: thermal destruction, landfills, and underground injection. The EPA will accept comments on this document until October 15, 2024.
EPA Final Rule on Drinking Water Standards for PFAS
On April 10, 2024, the EPA released the final rule establishing National Primary Drinking Water Regulation (NPDWR) establishing legally enforceable levels, called Maximum Contaminant Levels (MCLs), for six PFAS in drinking water. Subject to this rule are: perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA), perfluorohexane sulfonic acid (PFHxS) as contaminants with individual MCLs, and PFAS mixtures containing at least two or more of PFHxS, PFNA, HFPO-DA, and perfluorobutane sulfonic acid (PFBS) using a Hazard Index MCL to account for the combined and co-occurring levels of these PFAS in drinking water. The rule also finalized health-based, non-enforceable MCL Goals (MCLGs) for these PFAS.
The table below presents the MCLs and MCLGs under the final rule.
Designation of PFOA and PFOS as Hazardous Substances under CERCLA
On April 19, 2024, the EPA announced the designation of two of the most widely used PFAS — PFOA and PFOS — as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. EPA and other regulatory agencies with delegated CERCLA authority will now be able to apply EPA’s “enforcement first policy” to PFAS, meaning EPA will look to recover cleanup costs from Potentially Responsible Parties (PRPs) “before resorting to the Superfund, in furtherance of CERCLA’s ‘polluter pays’ principle.” The final rule also contains reporting requirements for releases of PFOA or PFOS or their salts and structural isomers over one pound in a 24 hour period. Because PFOA and PFOS are now CERCLA designated hazardous substances, they should both be included in Phase I Environmental Site Assessments, consistent with the requirements of ASTM E1527-21.
EPA’s PFAS Enforcement Discretion and Settlement Policy
As subtly noted in the EPA’s news release on the Designation of PFOA and PFOS, the EPA simultaneously issued a memorandum on its PFAS Enforcement Discretion and Settlement Policy Under CERCLA (Policy). The Policy describes that the EPA’s focus in enforcement will be on significant contributors, noting:
“Consistent with CERCLA’s objectives, EPA will focus on holding accountable those parties that have played a significant role in releasing or exacerbating the spread of PFAS into the environment, such as those who have manufactured PFAS or used PFAS in the manufacturing process, and other industrial parties. For purposes of this Policy only, these parties are referred to as major PRPs.”
Although the Policy emphasizes its intent to pursue only “major PRPs,” it is important to note that the Policy “in no way affects EPA’s ability to pursue any responsible party, including those entities set forth in Section IV, whose actions or inactions significantly contribute to, or exacerbate the spread of significant quantities of PFAS contamination, thereby requiring a CERCLA response action.”
The Policy indicates that “EPA does not intend to pursue otherwise potentially responsible parties where equitable factors do not support seeking response actions or costs under CERCLA.” These entitles include, but are not limited to:
- Community water systems and publicly owned treatment works;
- Municipal separate storm sewer systems (MS4s);
- Publicly owned/operated municipal solid waste landfills;
- Publicly owned airports and local fire departments; and
- Farms where biosolids are applied to the land.
The Policy also notes that EPA may extend enforcement discretion to additional parties that do not fall within the five listed categories above based on the following “equitable factors:”
- Whether the entity is a state, local, or Tribal government, or works on behalf of or conducts a service that otherwise would be performed by a state, local, or Tribal government.
- Whether the entity performs a public service role in:
- Providing safe drinking water;
- Handling of municipal solid waste;
- Treating or managing stormwater or wastewater;
- Disposing of, arranging for the disposal of, or reactivating pollution control residuals (e.g., municipal biosolids and activated carbon filters);
- Ensuring beneficial application of products from the wastewater treatment process as a fertilizer substitute or soil conditioner; or
- Performing emergency fire suppression services.
- Whether the entity manufactured PFAS or used PFAS as part of an industrial process.
- Whether, and to what degree, the entity is actively involved in the use, storage, treatment, transport, or disposal of PFAS.
Lastly, the Policy provides guidance on settlement agreements and contribution protection. The Policy indicates that “EPA may enter into settlement agreements with parties where factors do not support enforcement against them for PFAS response actions under CERCLA.” A party to such a settlement agreement will not be liable for third-party contribution claims related to the matters addressed in the settlement. In addition, EPA may require major PRPs to waive the right to pursue contribution from certain non-settling parties, such as parties who meet the equitable factors.
The Policy is a reminder of EPA’s existing model consent decrees and confirmation that it will continue to apply these policies when deciding how to enforce cases on sites with PFAS contamination.