The Environmental Protection Agency (“EPA”) has issued its highly anticipated final rule to designate two per—and polyfluoroalkyl substances (“PFAS”) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). By designating both perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) as hazardous substances pursuant to CERCLA, EPA hopes to conduct timelier cleanup of contaminated sites and be better able to hold polluters accountable for PFAS contamination. Over the last several years, there has been a growing concern from the public, particularly from the agricultural sector, over PFAS contamination. In response to that concern, EPA put out the PFAS Strategic Roadmap in 2021 which outlined steps the agency planned on taking to address contamination. Designating PFOA and PFOS as CERCLA hazardous substances is the latest action EPA has taken to directly confront the issue. For farmers and ranchers struggling with PFAS contamination on their property, this new final rule could make it easier to undertake cleanup actions and recover associated costs.
What is CERCLA?
Congress first enacted CERCLA in 1980 in response to an increased desire for the federal government to ensure cleanup of the nation’s most polluted sites. CERCLA is implemented by EPA and has two overall primary objectives – to promote the timely cleanup of contaminated sites, and to ensure that those parties responsible for the contamination are held responsible for cleanup costs. Unlike other environmental statutes that seek to regulate pollution on the front end by limiting discharges, emissions, and release of pollutants, CERCLA addresses pollution already present in the environment on a site-specific basis. To facilitate these cleanup efforts, CERCLA established the Hazardous Substance Superfund Trust Fund (“Superfund”) which was initially funded by special taxes on industry, but is now funded primarily through general federal revenue.
To carry out its twin purposes, CERCLA authorizes response actions for releases of “hazardous substances” and “pollutants or contaminants” into the environment. 42 U.S.C. § 9604(a)(1). There are two kinds of response actions authorized under CERCLA: short-term removal actions and long-term remedial response actions. Removal actions refer to “such actions as may be necessary taken in the event of the threat of release” including actions that may be “necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment[.]” 42 U.S.C. § 9601(23). Typically, a removal action is a short-term response that can be taken to address releases or threatened releases that require immediate action such as providing alternative water supplies, securing the area to prevent public access, or evacuating threatened individuals. 42 U.S.C. §§ 9601(23); 9604(c)(1). Remedial actions refer to “those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment.” 42 U.S.C. § 9601(24). Remedial actions involve cleanups that are longer-term and more complex than removal actions with the overall goal of providing permanent solutions for contaminated areas.
Importantly, a removal action can be taken at any site so long as it is determined that “there is a threat to public health or welfare[.]” 40 C.F.R. § 300.415(b)(1). Remedial actions, on the other hand, can only occur on sites that are listed on the National Priorities List (“NPL”). 40 C.F.R. § 300.425(b)(1). CERCLA instructs EPA to maintain a list of the most contaminated sites in the United States which pose the greatest threat to human health and the environment. 42 U.S.C. § 9605(c). This list is known as the NPL. If EPA wants to initiate a remedial action, it must first evaluate a site to determine whether it should be designated as an NPL site.
Along with promoting the timely cleanup of contaminated areas, CERCLA’s other goal is to ensure that those responsible for the contamination are held financially liable. This is commonly known as the Polluter Pays principle. While CERCLA creates the Superfund to pay for cleanups, it is the goal of the statute to ultimately have potentially responsible parties (“PRPs”) be financially responsible for cleanup actions. CERCLA identifies four categories of PRPs who may be liable for costs associated with cleanup actions: (1) any person who currently owns or operates a facility or vessel from which a hazardous substance was released; (2) any person who owned or operated a facility or vessel at the time the release of a hazardous substance was made; (3) any person who arranged for the disposal, treatment, or transport of hazardous substances; and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities. 42 U.S.C. § 9607(a).
In general, there are three mechanisms that CERCLA provides to EPA to recover costs from PRPs. First, EPA can choose to spend Superfund money on the front end to initiate cleanup if the PRPs have not been identified. In this case, EPA may be reimbursed afterwards either through a settlement agreement with the responsible parties or through judicial action. Second, a PRP who is willing to resolve liability voluntarily can enter into a settlement agreement with EPA prior to the start of a cleanup action. Such agreements typically require the PRP to perform specific cleanup actions or make a monetary payment to help cover cleanup costs. Third, EPA can issue an administrative order or seek a judicial order to require a PRP to undertake cleanup actions to address “an imminent and substantial endangerment to public health or welfare, or to the environment” that occurs from either a threatened or actual release of hazardous substances.
Finally, along with authorizing EPA to enforce cleanup liability, CERCLA also authorizes citizens to file citizen suits. Under CERCLA, private parties can file a lawsuit to challenge the adequacy of a cleanup action. Private parties can also file lawsuits against any person who is alleged to still be in violation of a “standard, regulation, condition, requirement, or order” after a cleanup action is completed. 42 U.S.C. § 9659(a)(1).
Designating PFAS as a “Hazardous Substance”
The final rule released by EPA on April 19, 2024, formally designates two types of PFAS – PFOA and PFOS – as hazardous substances under CERCLA. By doing so, EPA will be able to utilize CERCLA authorities to facilitate cleanup of contaminated sites. According to EPA, this move is “critical to addressing PFOA and PFOS releases in the environment[.]”
PFAS are a large group of synthetic chemicals that have been in use since the 1940s. PFAS, including PFOA and PFOS, are highly resistant to water, heat, and staining which lead to them being widely used for various commercial and industrial purposes. Since their introduction, PFAS have been used in everything from household products like non-stick cookware and water-repellant carpeting to fire extinguishing foam, food packaging, and water resistant fabrics. Due to their strong carbon-fluorine bonds, PFAS are resistant to deterioration and take a long time to break down in the environment. Additionally, PFOA and PFOS are both highly mobile and can travel long distances from where they were first released. Both chemicals have been found in surface water, groundwater, soil, and air.
EPA first proposed designating PFOA and PFOS as hazardous substances pursuant to CERCLA in September 2022. When designating something as a hazardous substance, EPA will consider whether the substance presents a “substantial danger to the public health or welfare or the environment[.]” 42 U.S.C. § 9602(a)(1). To determine whether a substance may present a “substantial danger,” EPA considers two primary factors: the potential harm to humans and the environment that may result from exposure to the substance; and how the substance potentially moves, persists, and changes when in the environment. In making this determination, EPA may consider such information as human health toxicity, including possible carcinogenicity, neurotoxicity, and developmental or reproductive toxicity. EPA may also consider toxicity or adverse impacts to wildlife, aquatic life, or other natural resources.
In concluding that PFOA and PFOS should be designated as hazardous substances, EPA considered “substantial evidence” indicating that human exposure to both chemicals is linked to adverse human health effects. EPA relied on studies which indicate that both PFOA and PFOS are linked to developmental effects in fetuses and infants, tissue damage to livers, damage to the immune system, and various other health impacts. EPA also cited evidence showing that PFOA and PFOS travel widely through the environment and can take years to break down. According to EPA, PFOA and PFOS have been found in soil, plants, water, and air across multiple different geographic locations. This increases the chance of human exposure. For those reasons, EPA has designated both PFOA and PFOS as hazardous substances.
Once something has been designated as a hazardous substance under CERCLA, it becomes subject to the statute’s notification, response, enforcement, and cost recovery authorities. Under CERCLA, any entities that release a hazardous substance at or above the reportable quantity must make a notification of the release. 42 U.S.C. § 9603(a). A release is defined as any “spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment[.]” 40 C.F.R. § 302.3. For PFOA and PFOS, EPA has set the reportable quantity at one pound. If a release of one pound or more of either chemical is made, it must be reported to the National Response Center. Designation of PFOA and PFOS as hazardous substances also allows EPA to quickly respond to releases or threatened releases using either removal or remedial actions. Remedial actions are only available for releases of hazardous substances. Finally, CERCLA’s authority to compel PRPs to pay for or conduct cleanup actions for releases of hazardous substances. Following designation, EPA will be able to hold PRPs financially responsible for cleaning up PFOA and PFOS contamination.
Implications for Ag
Over the last several years, numerous agricultural operations have experienced PFAS contamination. Across the country, multiple operations have been forced to cease production due to high levels of PFAS found in their soil, water, and agricultural products. For some of these operations, the PFAS contamination is due to releases of PFAS made from nearby military or industrial facilities. For others, the PFAS contamination is due to the spreading of biosolids on fields for use as fertilizer. While CERCLA is rarely relevant to agricultural producers as it typically focuses on industrial pollution, designating PFOA and PFOS as hazardous substances could impact farmers dealing with PFAS contamination.
Farmers with property that is contaminated with either PFOA or PFOS may be able to work with EPA to initiate cleanup actions or recover costs for already initiated cleanup actions from PRPs. Farmers may also be able to initiate citizen suits to compel PRPs to act. However, at the moment, it is not clear how many contaminated agricultural operations will be able to pursue action under CERCLA.
Importantly, along with its final rule to designate PFOA and PFOS as hazardous substances, EPA has issued an accompanying memorandum specifically excluding farms that have spread PFAS-tainted biosolids from being considered PRPs under CERCLA. The memorandum clarifies that EPA will be focusing on “those who have manufactured PFAS or used PFAS in the manufacturing process, and other industrial parties” when identifying PRPs for cleanup activities.
Overall, EPA’s decision to designated PFOA and PFOS as hazardous substances will provide the agency and those dealing with PFOA and PFOS contamination additional authority to initiate cleanup actions and hold PRPs financially liable for those actions. EPA has noted that this is one of the many steps that the agency plans to take to help further address PFAS contamination.
To view a draft of the final rule, click here.
To view the accompanying memorandum, click here.
To read the text of CERCLA, click here.
For more information on PFAS and agriculture from the National Agricultural Law Center, click here to view NALC’s recorded webinar Not Your Grandfather’s Corn Maze – Regulatory and Legal Responses to Challenges Faced by Agriculture Due to PFAS Contamination.