Legal Alert

EPA Seeks to Regulate PFAS Under Superfund Law

by Erin M. Carter and Harry Weiss
August 30, 2022


The U.S. Environmental Protection Agency (EPA) issued a pre-publication notice that proposes listing two common per- and polyfluoroalkyl substances–known as PFAS–as “hazardous substances” under the Superfund program. The EPA’s August 26 Notice is the first step to including the two compounds on a list of hazardous substances, releases of which would be subject to cleanup under the Superfund law.

The Upshot

  • The EPA is proposing to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as “hazardous substances” under the Superfund law.
  • This is the first time the EPA has proposed directly listing specific compounds as “hazardous substances,” using its authority under CERCLA § 102(a).
  • Public comments must be received on or before 60 days after the date of publication of the proposed rule.

The Bottom Line

The targeted substances, PFOA and PFOS, are two of the most-studied PFAS and largely have been phased out of use and manufacture. The EPA claims its action is warranted because evidence indicates these chemicals may present substantial danger to public health and welfare or to the environment when released into the environment. The proposed rule is expected to increase the EPA’s ability to order cleanups and recover costs as well as create new reporting requirements under the Superfund program.

On August 26, 2022, the U.S. Environmental Protection Agency (EPA) issued a pre-publication notice that proposes regulating two per- and polyfluoroalkyl substances–known as PFAS–under the Superfund program. The EPA is proposing to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

CERCLA provides for the cleanup of uncontrolled or abandoned facilities as well as accidents, spills, and other emergency releases of “hazardous substances.” Thus, the regulatory designation as a “hazardous substance” is an important step to allow the EPA to use the myriad reporting, notification, and enforcement provisions under CERCLA to address PFOA and PFOS contamination.

The proposed rule is unprecedented. The EPA historically has relied on various lists under the Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act, and Toxic Substance Control Act to define the approximately 800 “hazardous substances” under CERCLA. See EPA’s List of Hazardous Substances and Reportable Quantities, 40 CFR § 302.4. However, this proposed rule relies on a never-before-used CERCLA provision that gives the EPA authority to designate additional hazardous substances not listed under the aforementioned lists if such a substance “when released into the environment may present substantial danger to the public health or welfare or the environment.” CERCLA § 102(a).

The proposed rule includes a lengthy explanation of the EPA’s criteria for exercising this authority under § 102 without taking into account cost impacts of the action, where costs associated with the impact of a new regulation are not assessed. The EPA argues that use of § 102 does not require a cost benefit analysis, relying on Whitman v. American Trucking, 531 U.S. 457 (2001); Michigan v. EPA, 576 U.S. 743 (2015); and Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. Cir. 2018) to support its statutory interpretation.

Industry does not agree, setting up the possibility that the proposed rule will lead to litigation. For example, the U.S. Chamber of Commerce claims the rule will cost the private sector up to $800 million annually for cleanup costs at Superfund sites. Wastewater and drinking water utilities urged the EPA to undertake a “robust economic analysis,” citing concerns that the proposal may impose liability on utilities and other “innocent” parties, including those that pursued beneficial uses for biosolids in their treatment processes. Further, prior to the proposed rule’s publication, the American Chemistry Council (ACC) reportedly asked the White House to withdraw the proposed rule and conduct an economic analysis before moving ahead.

The most immediate effect of the proposed rule would be additional reporting requirements under CERCLA and the Emergency Planning and Community Right-to-Know Act (EPCRA). Under CERCLA § 103(a) and EPCRA § 304, reporting to the proper authorities would be required as soon as a facility operator had knowledge of any release of one pound or more of PFOA or PFOS. This is not the first reporting requirement for releases of PFOA and PFOS, but it does expand the threshold and breadth of reporting. Currently, under the Toxic Release Inventory reporting requirements, facilities in regulated industry sectors must report annually on releases and other waste management of certain listed toxic chemicals that they manufacture, process, or otherwise use above certain threshold quantities, including PFOA and PFOS, for which the limit is 100 pounds.

One of the most significant impacts of this proposed rule would be the EPA’s increased authority to use its CERCLA enforcement authorities to recover PFOA and PFOS cleanup costs from potentially responsible parties under CERCLA § 107. In turn, the proposed rule may allow private parties that conduct PFOA and PFOS cleanups to more easily recover cleanup costs from potentially responsible parties in a contribution action under CERCLA § 113.

The EPA is already using its CERCLA authority to address PFOA and PFOS as “pollutants and contaminants” by determining in certain circumstances that the “release may present an imminent and substantial danger to public health or welfare.” However, under the proposed rule, the EPA may pursue a response action if there is a release or threatened release of PFOA or PFOS without having to establish an imminent and substantial danger due to their designation as “hazardous substances.”

As of August 30, 2022, the EPA has not yet published the proposed rule in the Federal Register. Once published, comments must be received on or before 60 days after the date of publication in the Federal Register.  

Attorneys in Ballard Spahr’s Environment and Natural Resources Practice provide regulatory, transactional, and litigation support to clients in every corner of the market—helping clear the way for projects, address environmental challenges, maintain regulatory compliance, and navigate enforcement issues.

Our attorneys advise on regulatory compliance and enforcement matters arising under federal environmental statutes as well as state and local programs. We analyze and negotiate the environmental issues at play during transactions and project development. Please call us for more information.

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