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On April 19, 2024, the U.S. Environmental Protection Agency (EPA) took a pivotal step to address the pervasive issue of PFAS contamination by designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), along with their salts and isomers as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the Superfund law. This designation is a part of the agency’s broader commitment to tackle pollution from per- and polyfluoroalkyl substances (PFAS). The new rule will go into effect 60 days after it is published in the Federal Register.

What are PFOA and PFOS?

PFOA and PFOS are types of per- and polyfluoroalkyl substances (PFAS), which have been extensively used in a range of consumer and industrial products due to their unique properties. These include applications in food packaging, cookware, stain-resistant fabrics, firefighting foams, and more. Known as ‘forever chemicals’ because of their durability and estimated degradation period of up to 1,000 years, PFAS has raised concerns due to their potential health impacts. Research links PFAS exposure to serious health issues including cancers, liver and heart damage, and immune and developmental harm to infants and children. These findings have drawn attention from health, environmental, and regulatory bodies and have led to a growing number of lawsuits, indicating the ongoing concern and significance of PFAS in public health discourse.

Overview of the New Rule:

Enforcement and Cleanup: By categorizing these substances as hazardous, the EPA can enforce cleanup measures more effectively and ensure that the parties responsible for pollution bear the cost of remediation efforts, rather than taxpayers.

Reporting and Transparency: Facilities that release PFOA or PFOS will be required to immediately report any significant releases to the National Response Center, State, Tribal, and local emergency responders that meet or exceed the reportable quantity of 1 pound within a 24-hour period.

Heightened Disclosure and Transportation Requirements: Federal agencies transferring or selling property must disclose any storage, release, or disposal of these chemicals that occurred on the premises. They must also certify that any existing contamination has been remediated or provide a plan for future cleanup actions. Under the final rule, the Department of Transportation must list and regulate PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act. This step will enforce proper handling, labeling, and transportation protocols when these substances are moved, helping mitigate potential releases during transit.

CERCLA Enforcement Discretion Policy: The EPA will be issuing a separate CERCLA enforcement discretion policy that will focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment. Since the EPA recognizes that certain entities may not have significantly contributed to PFOA and PFOS releases it will largely exempt the following from enforcement actions under CERCLA: farmers, municipal landfills, water utilities, municipal airports, and local fire departments.

Affected Parties Include but are Not Limited to:

  • PFOA and/or PFOS manufacturers (including importers and importers of articles that contain these substances)
  • PFOA and/or PFOS processors
  • Manufacturers of products containing PFOA and/or PFOS
  • Downstream users of PFOA and PFOS and products containing these compounds
  • Wastewater treatment  and waste management facilities

For further details, please refer to the EPA’s official announcement.

Challenges and Other Considerations:

  • PFOA and PFOS can now be a REC: A release or likely release of PFOA and/or PFOS is now considered a Recognized Environmental Condition according to the ASTM E-1527-21 Phase I Environmental Site Assessment (ESA) standard. Previously, PFOA and PFOS were considered “emerging contaminants” and were thus a non-scope item that was not required to be discussed in a Phase I ESA. However, ASTM E-1527-21 states in Section 6.10 of the appendix that “If and when such emerging contaminants are defined to be a hazardous substance under CERCLA, as interpreted by EPA regulations and the courts, such substances shall be evaluated within the scope of this practice.” Therefore, with the passage of this rule, evaluation of PFOA and PFOS is no longer a “non-scope” item and must be considered as part of a Phase I ESA in order to comply with ASTM E-1527-21.
  • Implementation and Compliance: Ensuring compliance with the new regulations may pose challenges, particularly in industries that have historically relied on PFAS compounds. The transition may require technological innovations and could entail significant costs.
  • Legal and Economic Implications: The designation may lead to increased litigation as affected parties navigate the implications of liability for PFAS contamination. Economically, industries may face increased operational costs, which could influence market dynamics and product pricing.
  • Broader Implications for PFAS Regulation: While this rule specifically targets PFOA and PFOS, it sets a precedent for potential future action on other PFAS compounds. The EPA continues to assess the risks associated with other PFAS and may consider additional regulations to address the broader class of chemicals.

How to Identify and Mitigate PFOA/PFOS Risks

AEI’s comprehensive Environmental Site Assessments (ESAs) are pivotal in the early detection and management of hazardous substances like PFOA and PFOS. Our Phase I ESA begins with a thorough review of historical records and a site inspection to identify potential contamination clues without physical sampling. If hazardous risks are indicated, we proceed to Phase II ESA, which involves detailed environmental sampling and laboratory analyses to confirm the presence of these contaminants. Common contamination pathways include:

  • Groundwater
  • Drinking Water
  • Non-potable Groundwater
  • Soil
  • Soil Vapor

When conducting our assessments we consider specific features or site conditions that might facilitate a release of PFAS into the environment. This includes examining drains, pits, sumps, smokestacks for aerial dispersion, and any large storage units that may leak PFAS into surrounding areas.

Tailored Next Steps:

Upon detecting PFAS risks, AEI crafts tailored strategies to manage liability and remediate contamination. This includes evaluating the property’s immediate and future risks and discussing optimal management practices. If your site is at risk or already impacted by PFAS, AEI provides thorough research and investigative services to guide you through necessary response actions. Identifying hazardous releases early through our ESAs can significantly mitigate potential liabilities by informing stakeholders of necessary remedial actions and ensuring regulatory compliance.

Final Thoughts:

The EPA’s final rule on PFOA and PFOS is a landmark decision in U.S. environmental policy, reflecting a shift towards more stringent chemical regulation and accountability. It not only aims to expedite the cleanup of contaminated sites but also sets a precedent for future regulatory actions against similar pollutants.

For property owners and stakeholders concerned about the risks posed by hazardous substances like PFOA, PFOS, and other PFAS contaminants, AEI provides comprehensive environmental assessments and other due diligence reports. If PFAS contamination is detected, we work closely with you to develop tailored remedial action plans, outlining preventive measures, and aligning your property with evolving CERCLA and other environmental regulations. Don’t let contamination jeopardize your property’s compliance or value. Contact AEI today to learn more about our assessments and remedial solutions.

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