July 23, 2024

PFOA and PFOS Added as CERCLA Hazardous Substances

On May 8, 2024, EPA finalized a rule designating two per- and polyfluoroalkyl substances (PFAS) as CERCLA hazardous substances. [89 FR 39124] The two PFAS chemicals are perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers. The reportable quantity (RQ) for PFOA and PFOS is one pound. EPA included information on its evaluation of PFOA and PFOS and determined these chemicals may present a substantial danger to public health and the environment when released.

The PFOA and PFOS CERCLA hazardous substance designation triggers reporting requirements under CERCLA Sections 103 and 111(g) and Section 304 of the Emergency Planning and Community Right-to-Know Act. Facilities must immediately report to the National Response Center releases to the environment of PFOA or PFOS that exceed one pound over 24 hours. Additional reporting may be required under state, tribal, and local EPCRA programs. Per CERCLA Section 306, the Department of Transportation must regulate any hazardous substance as a hazardous material.

Indirect downstream effects of this rule begin with requiring potentially responsible parties to address PFOA and PFOS releases and pay for the cleanup costs. EPA and state agencies can now use CERCLA authority to respond to releases of PFOA and PFOS without making the imminent and substantial danger finding required for responses. [CERCLA Section 104(a)] Additionally, private parties conducting National Oil and Hazardous Substances Contingency Plan cleanups can also recover cleanup costs. [40 CFR Part 300] The effective date of this rule was July 8, 2024.

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This document addresses issues of a general nature related to the federal environmental regulations. Persons evaluating specific circumstances dealing with the environmental regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.