EPA Submits Final Rule to Designate PFOA/PFOS as CERCLA Hazardous Substances to White House
On December 6, the U.S. Environmental Protection Agency (EPA) submitted a draft final rule to designate two PFAS chemicals, PFOA and PFOS, as 'hazardous substances' under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known as the Superfund law, to the White House's Office of Management and Budget (OMB). OMB now has up to 120 days to review the document and ensure that EPA complied with the applicable rulemaking requirements. Upon completion, EPA would be permitted to move forward with issuing the rule. OMB's receipt of the draft document signals a strong possibility that the industry could see a final rule designating PFOA and PFOS as CERCLA hazardous substances sometime in spring 2024.
AAAE is working to prevent airports from being financially responsible for historical usage aqueous film forming foam (AFFF), which contains PFAS, because FAA has required airports to use AFFF at their facilities for decades. In a positive development, EPA signaled that the agency is developing a policy that would protect some entities, including airports, from EPA enforcement actions under the Superfund law. While we are supportive, airports would still be subject to potential private party actions, which is why AAAE continues to advocate on the Hill for CERCLA liability protection for airports. The Federal Affairs Team is actively working to gain inclusion of a provision providing such protection as part of FAA reauthorization legislation or another bill being considered in the Senate Environment and Public Works Committee.
Background on EPA's CERCLA Rulemaking. In August 2022, EPA released a proposed rulemaking that would designate PFOA and PFOS as hazardous substances under CERCLA, known as the Superfund law. Under the law, 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. For airports, such a designation could trigger potentially costly litigation and cleanup efforts to address PFOA and/or PFOS related contamination because CERCLA imposes liability on parties that are responsible for releases, or threatened releases, of any substances designated as hazardous.
In November 2022, AAAE strongly responded to EPA's proposal, arguing that the designations would be a draconian measure that causes unintended consequences and unfairly punishes airports for procuring and using AFFF in accordance with federal requirements and in the interest of public safety. We emphasized that EPA has an obligation to consider how the designation would cause substantial cleanup costs at airports, impede the industry's effort to transition to fluorine-free firefighting agents, and impact ongoing and planned infrastructure development. We strongly urged EPA to provide airports with protection from liability if it can be shown that an airport's use of AFFF complied with federal requirements.
In response to the proposed rule, EPA received over 64,000 comments and has been adjudicating these submissions for over the past year. This spring, EPA signaled that the agency intends to develop an enforcement discretion policy that would protect some entities, including airports, from EPA enforcement actions under the Superfund law. However, the agency has not yet publicly released a draft of the policy.
OMB Review Process. The Office of Information and Regulatory Affairs (OIRA), which is part of OMB, reviews every significant rulemaking action from agencies like EPA to ensure that the agency reviewed public comments, considered alternatives, and analyzed costs and benefits where applicable. OIRA has up to 90 days to review, with the option of extending the period by an additional 30 days. On occasion, however, reviews have extended for longer than 120 days, especially for more controversial rulemakings. During or after the review, OIRA may raise concerns over the draft rule directly with EPA, although those issues are usually addressed before the draft is officially submitted to and 'received' by OIRA. During this review, industry does not have access to the document that is being considered. Upon completion of OIRA's review, EPA would be permitted to move forward with issuing the final rule.
What's Next? OMB will review the draft final rule on designating PFOA and PFOS as CERCLA hazardous substances over the next several months. Absent any major developments during the review, EPA is likely to issue the final rule in late winter or spring 2024, although the review could take longer and stretch further into the year. Issuance of the rule is likely to bring legal challenges from a range of industries that could delay or even halt implementation.
In the meantime, AAAE will continue to engage with lawmakers and regulators and work to prevent airports from being financially responsible for the impacts of historical usage of AFFF. FAA has required airports to use AFFF at their facilities for decades, and we will continue to push back on any PFOA/PFOS hazardous substance designations without corresponding liability protection for airports.
Resources on EPA's Proposal to Designate PFOA/PFOS as Hazardous Substances
• EPA's CERCLA PFAS Enforcement Discretion and Settlement Policy (Draft Forthcoming)
• AAAE's November 8, 2022 Regulatory Alert on Comments to EPA's Proposed Rule
• AAAE's November 7, 2022 Comments to EPA on Proposed Rule
• EPA's Proposed Rule to Designate PFOA/PFOS as Hazardous Substances
• EPA's Summary of the Proposed Rule
• AAAE's August 26, 2022 Regulatory Alert on EPA's Proposed Rule
