EPA, Industry, DOD Prepare for PFAS "Hazardous Substance" Designation Under CERCLA
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The EPA is getting closer to publishing a Notice of Proposed Rulemaking designating two PFAS (PFOA and PFOS, both found in firefighting foams) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The proposed designation was laid out in the EPA’s PFAS Strategic Roadmap published last November, which outlined a proposed rulemaking in Spring 2022 and a final rule in Summer 2023. A listing as hazardous substances under CERCLA would require parties to report when these chemicals were released to the environment and would allow the government to seek cleanup costs from parties responsible for releasing these chemicals.
In response to the impending rulemaking, several industry groups that represent airports, water utilities, landfills, and liquid terminals (including ILTA) have sought statutory liability relief if the proposed regulation is finalized. Carlton Waterhouse, the Deputy Assistant Administrator of the Office of Land and Emergency Management at the EPA recently commented that the agency lacks the authority to exempt industry, leaving Congress as the primary option for relief for these groups.
The DOD also appears to be concerned by imminent Superfund designations. Richard Kidd, DOD Deputy Assistant Secretary for Environment and Energy Resilience, recently voiced concerns that lower Superfund screening levels for PFOA and PFOS would force the DOD to reopen investigations of PFAS-contaminated sites.
In anticipation of the release of the proposed rulemaking, the EPA has begun to aggressively prepare for PFAS to fall under Superfund legislation. The EPA began issuing requests for information about past and future use, handling, and disposal of PFAS at facilities around the country. These requests will likely be used to determine future liability for PFAS release. The EPA also recently added regional screening and removal management levels for five PFAS chemicals, which can lead to further investigation or actions if these levels are exceeded at Superfund sites.
Information on state-level legislation related to the phase-out of AFFF can be found in the ILTA legislation tracker.
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