EPA Releases Final Rule for PFOA and PFOS CERCLA Designation

The U.S. Environmental Protection Agency (EPA) released its final rule designating PFOS and PFOA as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The rule will require the manufacturers of PFAS to clean up and remediate a CERCLA designated site found to be contaminated with the substances.  In its announcement, EPA released the final rule, a questions and answers document, and a separate enforcement discretion policy.

The Final Rule requires any entity with a discharge of a pound or more of PFOA and PFOS in a 24-hour period must report those discharges to the National Response Center.  Additionally, any entity that wishes to see or transfer the property with the discharge, including federal land, must notify by means of a covenant.  Those that are responsible for the discharge must pay for the remediation of the site, per the traditional “polluter pays” model under CERCLA.  Cleanup and monitoring are done on a site by site basis subject to an EPA investigation.

Importantly for biosolids, EPA stated in its enforcement policy it does not intend to hold public drinking water, wastewater, or farms that have applied biosolids to land responsible for contamination.  EPA also does not intend to hold publicly owned landfills and airports responsible for contamination either.  Other passive receivers that are not listed may also be considered exempt if they meet certain criteria as outlined by the rule.  Despite this enforcement discretion policy, the final rule does not exempt passive receivers from litigation alleging responsibility by any third-party litigant.  This is the reason the VBC has signed on to a coalition letter of organizations representing passive receivers to the members of the Senate Environment and Public Works Committee asking Congress to pass legislation with a passive receiver exemption.  Without that exemption, any passive receiver, including those handling biosolids, may be added to a lawsuit determining them liable for a contamination.

The EPA also recently finalized the PFAS standard for drinking water and VBC continues to expect the EPA to release a biosolids risk assessment tool toward the end of 2024.