5 Major Takeaways from PFOA/PFOS Proposed CERCLA Designation

5 Major Takeaways from PFOA/PFOS Proposed CERCLA Designation
On September 6, 2022, the U.S. Environmental Protection Agency (EPA) published its much-anticipated proposal to add two of the most notorious PFAS compounds—PFOS and PFOA—to the Superfund program.

Officially known as the Compre­hen­sive Envi­ron­men­tal Response, Compen­sa­tion and Liability Act (CERCLA), the federal government’s Superfund program began as a way to hold polluters accountable for releases of hazardous substances that could endanger public health and the environment. For the first time, EPA has proposed that two PFAS analytes, PFOA and PFOS, be added to the Superfund program.

“A CERCLA designation gives EPA or other agencies authority to require facilities to investigate and report PFOA and PFOS releases and to enforce cleanup of a cont­a­m­i­nated site or to recover costs in doing so, the classic ‘polluter pays,’” said Tamzen Macbeth, CDM Smith envi­ron­men­tal engineer and remediation practice leader. "It has broad impli­ca­tions requiring inves­ti­ga­tion and remediation of sites, including re-opening closed sites, with overall costs likely in the billions of dollars.”

EPA is now on a track to publish the Notice of Proposed Rulemaking in the Federal Register sometime next year. In preparation, CDM Smith’s team of PFAS experts have noted the following takeaways:

1. New reporting require­ments are on the way.

Upon designation, any person in charge of a vessel or an offshore or onshore facility, as soon as they have knowledge of any release of such substances at or above the reportable quantity (RQ) must immediately report such releases to the Federal, state, tribal and local authorities (CERCLA section 103(a), Emergency Planning and Community Right-to-Know Act (EPCRA) section 304).  

The rule would set the default reportable quantity (RQ) at 1.0 lb in a 24-hour period. For most facilities that process drinking water and wastewater, that may not be an issue. Plants with flows in the 10-100 MGD range, for example, could discharge between 1,200 and12,000 ng/L of PFOS/PFOA and still be under the RQ. 

However, experts warn that residual PFAS concentrate from treatment tech­nolo­gies like granular activated carbon and anion exchange resins could still trigger a response. “With GAC or AIX resins, depending on the facility, you will be accu­mu­lat­ing PFAS,” said Michael Zafer, CDM Smith senior vice president and drinking water practice leader. “Over the course of a month or a year, you could be producing enough PFAS to require reporting.” 

Even if your utility is only responsible for a fraction of pollution, it could be required to clean up the site.
Jane Madden, CDM Smith Water Reclamation Practice Leader
Tamzen MacBeth Tamzen MacBeth
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2. No industry exemptions exist in the current draft.

The five broad categories of entities potentially affected by this action include: (1) PFOA and/or PFOS manu­fac­tur­ers (including importers and importers of articles); (2) PFOA and/or PFOS processors; (3) manu­fac­tur­ers of products containing PFOA and/or PFOS; (4) downstream product manu­fac­tur­ers and users of PFOA and/or PFOS products; and (5) waste management and wastewater treatment facilities.

The full list of potentially-affected U.S. industrial entities includes aviation operations, landfills, municipal fire departments and fire­fight­ing training centers, waste management and remediation services, and wastewater treatment plants. As it is written, the draft does not include exemptions for industries downstream of the original sources of pollution. 

“While this action was widely expected, the water sector has repeatedly called for drinking water and wastewater systems to be made exempt from CERCLA liability related to PFAS that is properly disposed of after their removal from water supplies,” the Association of Metro­pol­i­tan Water Agencies noted in a news release.

3. Expect an increase in the number of National Priority Sites. 

Once a Federal agency learns of a release or potential threat of a release of a hazardous substance, pollutant and/or contaminant, CERCLA authorizes response in one of three ways: by determining no action at the Federal level is warranted; by undertaking a removal action (if the situation presents a more immediate threat); or by assessing the relative risk of the release to other releases via the NPL [National Priorities List] listing process that is the first step towards a longer-term remedial action. 

Beginning with a preliminary assessment and/or site inspection, the Superfund process has several different outcomes, and not all sites that initially trigger a response will be added to the NPL. According to EPA, only about 3% of assessed sites have been placed on the Superfund list. 

“This program typically addresses our most contaminated and hazardous sites,” said Macbeth. “It’s not a forgone conclusion that one of these sites, because they’re releasing PFAS, is going to become a Superfund site.” 

The proposed draft is also expected to affect existing and even closed Superfund sites. According to Macbeth, the new reporting requirements could lead to the reopening of closed sites as part of the 5-year review process. 

4. Prepare for potential litigation costs.

EPA and delegated agencies could recover PFOA and PFOS cleanup costs from potentially responsible parties, to facilitate having polluters and other potentially responsible parties, rather than taxpayers, pay for these cleanups. 

Even if advocacy groups lobbying to protect water and wastewater processing facilities success­fully secure exemptions for their stake­hold­ers, gray areas related to potential litigation will likely remain. That is because, under CERCLA, potentially responsible parties have the ability to bring additional entities into the fold to help shoulder the cost burden, known as joint and several liability.

Jane Madden, CDM Smith water reclamation practice leader, is especially concerned for water reclamation facilities. For example, does the reclamation facility landfill its sludge, and has that landfill been tested for PFAS? Have properties used for land-applied biosolids been sampled for PFAS? 

“Even if your utility is only responsible for a fraction of pollution, it could be required to clean up the site,” she said. Since CERCLA was enacted, more than 650 munic­i­pal­i­ties have been brought into cases in this manner, Madden said.

5. Start a risk management strategy—now! 

While legislators and lobbying groups refine the EPA’s proposed rulemaking, there are actions you can take to manage your risk. Reach out to CDM Smith’s roster of renowned PFAS experts for an initial assessment. Our teams are developing compre­hen­sive PFAS strategies, including risk registers to help clients evaluate their regulatory risks, schedule risks, technical risks and cost risks.

Addi­tion­ally, our team can concep­tu­al­ize and customize a unique PFAS lifecycle for your site and your community incor­po­rat­ing PFAS sources, migration routes in the environment, and receptors to develop a compre­hen­sive under­stand­ing of PFAS in your environment. We also have expertise in PFAS risk commu­ni­ca­tion and can help develop internal and external (public) strategies around commu­ni­cat­ing PFAS issues and risks.

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With EPA and States regularly updating their PFAS regulations and guidance, CDM Smith has developed a comprehensive PFAS Regulations Interactive Map.

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