Update on EPA Proposal to Designate PFAS as CERCLA Hazardous Substances

Proposal. In September 2022, EPA published a proposal to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Lability Act (CERCLA, known as Superfund). Public comment deadline was November 7, 2022.  Following a review of public comments, on December 6, 2023, EPA submitted the final rule to designate PFOA and PFOS as hazardous substances to the Office of Management and Budget (OMB) for review.  As of April 15, 2024 the final rule is no longer under review at OMB.

CERCLA authorizes EPA to designate compounds as hazardous that “may present substantial danger to the public health or welfare or the environment.” Designating compounds as hazardous substances can lead to cleanup of contaminated sites.  In March 2023 EPA held two “listening sessions” regarding “enforcement discretion and settlement policy to the extent that PFAS cleanup enforcement efforts occur under CERCLA.”

Public Comments.  A number of public comments raised concerns about the potential impacts on drinking water and wastewater facilities.  On November 7, 2022, the American Water Works Association (AWWA) submitted public comments to EPA on the proposal.  Copied below are sections from AWWA’s comment letter.

“AWWA is concerned that the Proposal imposes significant costs and long-term liability on drinking water and domestic sewage treatment facilities (herein referred to collectively as water systems) and threatens to compound financial burdens on water systems that are, or under a forthcoming rule will be, protecting public health through drinking water treatment of PFOA and PFOS. These burdens will be directly felt by the water systems’ ratepaying customers and felt most acutely by those living in environmental justice communities.”

“While the Proposal does not list drinking water systems as “potentially affected entities” this Proposal could impose liability on the nearly 144,000 drinking water systems in addition to 19,000 domestic wastewater treatment systems across the United States, given the widespread presence of PFOA and PFOS in the environment (EPA, 2022a; EPA, 2022b). This liability will cause waste management costs for water systems to increase, which may have upwards of a $3.5 billion annual impact (Hazen & Sawyer, 2022).”

“Those costs will have a direct impact on our members and their customers. The Agency, in press releases and public outreach meetings, has signaled an interest in working to address equity concerns for water systems and other similarly innocent parties financed through ratepayers and taxpayers as it addresses PFAS-related concerns (EPA, 2022c; EPA, 2022d). As a key stakeholder representing members working on the frontlines of these pressing issues, AWWA appreciates the Agency shares these concerns. AWWA writes to explain why the Proposal will negatively impact water systems in a way that is not consistent with the Proposal’s objectives or the EPA’s stated concerns.”

Source: AWWA Letter to Barry Breen, Acting Assistant Administrator, Office of Land and Emergency Management, EPA.  “Comments on Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances (Docket ID No: EPA-HQ-OLEM-2019-0341).”  November 7, 2022.