Regulatory Alert: EPA Releases Rule to Designate PFOA/PFOS as Hazardous Substances Under CERCLA

On April 19, the U.S. Environmental Protection Agency (EPA) released a final rule that designates two PFAS chemicals, PFOA and PFOS, as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known as the Superfund law. The designation provides EPA with the authority to respond to releases of PFOA or PFOS in the environment and address hazards caused by historical releases of these chemicals.
 
For years, AAAE has raised concerns with EPA that such a designation could unfairly trigger costly litigation and cleanup efforts for airports to address PFOA/PFOS-related contamination because the Federal Aviation Administration (FAA) has required airports to use aqueous film forming foam (AFFF) for decades. We have also been urging EPA to provide airports with liability protection if it does move forward with the rule. While EPA acknowledged and gave “serious consideration” to these concerns, the agency ultimately concluded that the advantages of the rule outweighed those factors. EPA also stressed that it does not have the legal authority to provide a liability exemption for airports.
 
In a positive development, however, EPA released an enforcement discretion policy today that outlines how the agency will not pursue PFAS response actions or cost recovery under CERCLA from some entities, including publicly owned airports. EPA recognized the longstanding federal mandate for AFFF use and that airports did not manufacture or profit from the use of PFOA or PFOS. While we are supportive of the policy, as it should provide some level of protection, airports could still be subject to private party actions, which is why AAAE continues to advocate on the Hill for more comprehensive liability protection for airports.
 
We have reviewed EPA’s final rule, along with other materials released today, and provided our initial analysis below. The rule is expected to be published in the Federal Register within the next week or two; the designation will go into effect 60 days after publication. In the meantime, we will be monitoring for potential legal challenges, which could delay or halt implementation, and engaging with EPA, FAA, and our members to understand potential implications from the rule and mitigate any negative impacts.
 
Background on CERCLA. Under CERCLA, EPA has the authority to respond directly to releases, or threatened releases, of any “hazardous substances” that may endanger public health and/or the environment. The statute gives EPA the authority to conduct or order two types of responses: short-term “removal” actions when there is a release or threatened release and long-term “remedial” actions to permanently and significantly reduce risks associated with releases of the substance. Most importantly, CERCLA imposes retroactive, joint and several, and strict liability on parties that are responsible, in whole or in part, for the release of any hazardous substance.
 
In August 2022, EPA released its proposed rule that would designate PFOA and PFOS as CERCLA hazardous substances. This was the first time that EPA exercised its authority to designate any substances as hazardous under the statute. The agency based the proposed designation on the potential human health and environmental hazards associated with exposure to the chemicals. In our response, AAAE argued that such a designation would be a draconian measure that unfairly punishes airports for procuring and using AFFF in accordance with federal requirements. We also strongly urged EPA to provide airports with protection from CERCLA liability.
 
Summary of EPA’s Final Rule. EPA’s rulemaking was relatively straightforward in terms of the issue under consideration: whether EPA should designate two specific PFAS chemicals as hazardous substances under CERCLA. EPA’s 230-page final rule, however, outlines its rationale for issuing such a designation for PFOA and PFOS and responds to many of the comments raised by AAAE and other groups:

• EPA’s Justification for Designation: EPA outlined a number of reasons to support moving forward with the designation. Most notably, the agency pointed to the wide range of scientific and technical information showing how these chemicals may have adverse effects on human health and the environment. This includes the “persistency” of the chemicals, how they bioaccumulate, a variety of potential adverse human health effects, and their prevalence in the environment. EPA also argued that the designation would require “polluters” to pay for cleanup, rather than taxpayers, and provide the agency with critical tools to identify, characterize, and clean up the most contaminated sites expeditiously.
  
  
• EPA’s Response to Concerns About Significant Cost Impacts: In our comments, AAAE raised major concerns over EPA’s failure to quantity and consider the cleanup costs that would be incurred by airports as a result of the rule. In response to pressure to consider these costs, EPA conducted an analysis to quantify potential indirect costs of the rule, including cleanup actions. The analysis, however, was not released today, so we have not been able to review it. This is a significant pivot from the proposed rule in 2022 where the agency strongly argued it had no obligation to consider indirect costs at all. Nonetheless, EPA concluded that the advantages of the rule outweigh any of the costs that may be incurred by industry.
  
  
• EPA’s Response to Liability and Litigation Concerns: EPA emphasized that it gave “serious consideration” to concerns over the possibility of some entities being exposed to liability and litigation after the rule is released even though they did not manufacture or generate PFOA or PFOS-containing materials. These considerations within EPA led to the issuance of the enforcement discretion policy, which we discuss further below. EPA concluded that the rule “should not result in excessive or unreasonable liability and litigation outcomes.” The agency also argued that its enforcement policies have proven to be useful tools in convincing responsible parties to not pursue entities covered by these enforcement discretion policies.
  
  
• EPA’s Response to AAAE’s Request for Liability Exemption: In our comments, AAAE requested that EPA provide airports with an exemption from CERCLA liability if the airport used AFFF in accordance with federal requirements. In response, EPA indicated that the agency does not believe it has the authority to provide such exemptions. The agency pointed to Congress as the only body that provides such carveouts. In addition, EPA does not believe it can exempt specific types of releases of PFOA or PFOS from falling within the purview of CERCLA—such as through the release of AFFF in response to an emergency—because any release of these substances may still “present substantial danger” to public health and/or the environment.

Reporting PFOA/PFOS Releases. As a result of the designation, any facility, including airports, that releases one pound or more of PFOA or PFOS within a 24-hour period must immediately notify EPA’s National Response Center. AAAE raised questions in our comments about how this notification requirement would apply in the case of an airport having to discharge AFFF in the event of an emergency. However, EPA did not respond or address that question. While clarity is still needed, we do not expect that the quantity of PFOA/PFOS present in AFFF would rise above the one-pound threshold if released during an emergency, triggering an obligation to notify EPA.
 
EPA’s Enforcement Discretion Policy. Along with the rule today, EPA released its “PFAS Enforcement Discretion and Settlement Policy Under CERCLA,” which outlines how EPA will exercise its enforcement discretion under CERCLA in matters involving PFAS. In the policy, EPA indicated that the agency will focus on holding responsible those entities that manufactured PFAS or used PFAS in the manufacturing process. EPA will not pursue entities where equitable factors do not support seeking response actions or costs under CERCLA. Publicly owned airports and local fire departments are included in the list of these entities.
 
The policy also outlines two ways in which EPA will use settlement agreements to provide airports and the other protected entities with some measure of litigation and liability protection. First, when it enters into CERCLA settlements with major responsible parties, the agency will seek to require those settling parties to waive their rights to sue parties falling within the scope of the policy, which includes airports. Second, EPA may enter into settlement agreements with parties where factors do not support enforcement against them. In that case, a party that resolves its liability through such an agreement with EPA would not be liable for claims brought against it by a third party.
 
Impact of Rule on FAA-Related Policies. There are still outstanding questions as to how the rule may impact FAA’s programs and policies, such as (a) whether FAA will reconsider its current position that it will not require airports to transition from AFFF to fluorine-free firefighting foam (F3); (b) whether the rule will affect environmental reviews conducted under the National Environmental Policy Act (NEPA) for airport development projects; or (c) whether FAA will change its policies on how PFAS-related costs are considered in the Airport Improvement Program or Bipartisan Infrastructure Law grant programs. We will be engaging with FAA to better understand what implications, if any, may result from today’s rule.
 
What’s Next? EPA’s rule will be published in the Federal Register within the next week or two. The rule and designation will go into effect 60 days after publication. AAAE will continue to engage with lawmakers and work to prevent airports from being financially responsible for the impacts of historical usage of AFFF because FAA has required airports to use AFFF at their facilities for decades. In the meantime, we will be engaging with EPA, FAA, and members to understand potential implications of the new rule and to mitigate any negative impacts.
 
Resources on EPA’s CERCLA Rule
• EPA’s April 19 Press Release on CERCLA Final Rule
• EPA’s Final Rule Designating PFOA/PFOS as Hazardous Substances (Pre-Publication Version)
• EPA’s April 19 “PFAS Enforcement Discretion and Settlement Policy Under CERCLA”
• EPA’s Website and Resources on CERCLA Final Rule
• AAAE’s November 7, 2022, Comments to EPA on CERCLA Proposed Rule
• EPA’s September 2022 Proposed Rule to Designate PFOA/PFOS as Hazardous Substances