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

The U.S. Environmental Protection Agency (EPA) on August 26 released a proposed rule that would 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. 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.

AAAE has been working to prevent airports from being financially responsible for the impacts of historical usage of aqueous film forming foam (AFFF), which contains PFAS, because the Federal Aviation Administration (FAA) has required airports to use AFFF at their facilities for decades. AAAE has engaged with lawmakers and regulators and strongly pushed back, and will continue to push back, on any hazardous substance designation of PFOA and PFOS without corresponding liability protection for airports.

The proposal has not been published in the Federal Register, but you can read the 103-page proposal on EPA's website. EPA indicated that publication could take several weeks to occur. Once published, AAAE, industry stakeholders, and the public will have 60 days to comment. AAAE will be working closely with its PFAS Coalition and members to respond to the proposal.

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 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.

PFOA/PFOS Hazardous Substance Designation. In the proposed rule, EPA contends that the agency has the authority to designate PFOA and PFOS as hazardous substances based on the potential human health and environmental hazards associated with exposure to the chemicals, including the “persistency“ of the chemicals, how they bioaccumulate, a variety of potential adverse human health effects, and their prevalence in the environment. This information has been widely available in other EPA publications but was included in the proposal to justify the agency's proposed actions.

Costs Associated with Proposed Rule. In the proposal, EPA spends a significant amount of time explaining why the agency believes it has no obligation to consider the costs of cleaning up PFOA and/or PFOS contamination at sites across the country when proposing to designate them as hazardous substances under CERCLA. EPA's position is unusual because an assessment of the cost impacts of a proposed rule is typically required, especially for rulemakings that may have significant financial impacts on industry. A few highlights from EPA's position on this topic:

• EPA argues in the proposal that the agency does not have to consider costs associated with the designation of hazardous substances because (a) the CERCLA statute precludes the agency from considering costs; (b) such a determination is based on scientific and technical considerations, not cost factors; (c) Congress never intended for the agency to consider costs; and (d) such an interpretation is consistent with existing case law (although there are some cases that may be in conflict with the agency's position, as noted in the proposal).

• EPA noted that it is “impractical“ to quantitatively assess the costs of cleanup at this stage because the agency does not know (1) the number of sites that have PFOA or PFOS contamination at a level that warrants cleanup; (2) the extent and type of PFOA, PFOS, and other contamination at/near sites; (3) the cost of assessing and remediating the PFOA and/or PFOS contamination at/near these sites; and (4) the cleanup level required for these substances. 

• Despite the position, EPA indicated that it has conducted a qualitative assessment of these costs and will be making that analysis available in the regulatory docket for this rulemaking. The docket has not been created yet, however, and the document was not available as of today. 

Despite making a lengthy argument that costs do not have to be considered, EPA requested comment on its interpretation and, if costs should be considered, how they should be considered.

AAAE's Position. For the past several years, AAAE has been engaged with lawmakers and regulators on PFAS-related issues and working to ensure that airports are not financially liable for the impacts of historical AFFF usage because FAA has required airports to use AFFF at their facilities for decades. AAAE is well positioned to forcefully respond to the proposal from EPA. Our PFAS Coalition has been working to estimate the financial impacts on the airport industry to address PFAS-related concerns and will have some generic cost data to present to EPA in response to the proposed rule. This data will be critical for AAAE and the industry to communicate airport needs and advocate for liability protection under CERCLA and PFAS-specific financial assistance for airports.

What's Next? EPA is expected to publish the proposed rule in the Federal Register within the next several weeks. This will trigger a 60-day comment period where the public will have an opportunity to weigh in on the proposal. EPA has already signaled its intent to move forward with a final rule in its Strategic Roadmap on PFAS that was released last year. If EPA does issue a final rule designating PFOA and PFOS as hazardous substances, this would likely require FAA to prohibit the use of AFFF at airports, which would then accelerate the transition to fluorine-free foam that is anticipated to begin in 2023.

Additional Resources
• EPA's Proposed Rule to Designate PFOA/PFOS as Hazardous Substances 
• EPA's Press Release on the Proposed Rule 
• EPA's Summary of the Proposed Rule 
• EPA's Strategic Roadmap on PFAS (Oct. 2021) 
• AAAE's October 18 Regulatory Alert on EPA's Strategic Roadmap on PFAS