On April 17, 2024, the EPA released a final rule designating two perfluorinated chemicals—Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  EPA also released enforcement guidance explaining how it intends to apply the new listing with respect to certain types of potentially responsible parties.

The rule will go into effect 60 days after publication in the Federal Register, and is the first time the agency has designated any hazardous substances under CERCLA.  Once the rule is effective, CERCLA responsible parties—including current and former owners and operators of property contaminated with PFOA or PFOS—will be potentially liable for PFOA and PFOS cleanup costs under CERCLA.  EPA has not yet released its economic analysis estimating the total likely cleanup costs that will be triggered this rule.

Once the rule is effective, various entities will face other new obligations.  For example, owners or operators of any vessel will be required to report to EPA’s National Response Center releases of any PFOA or PFOS (or their salts or structural isomers) of 1 pound or more within a 24-hour period.  Moreover, following a release of these substances, owners or operators of the relevant facility or vessel will be required to publish a notification in local newspapers in the affected area to provide reasonable notice to potential injured parties.

According to EPA, PFOA and PFOS have been in “widespread use since the 1940s in a wide range of commercial and consumer products,” and thus many types of entities may face new obligations and potential liability under CERCLA.  In part to address this, EPA issued an April 19, 2024 memo describing its enforcement discretion policy.  In it, EPA explained that it will largely exempt certain entities from PFOA and PFOS CERCLA enforcement actions, noting that for certain categories of facilities, “equitable factors do not support seeking response actions or costs under CERCLA.”  These include:

  • Community water systems and publicly owned treatment works;
  • Municipal separate storm sewer systems;
  • Publicly owned/operated municipal solid waste landfills;
  • Publicly owned airports and local fire departments; and
  • Farms where biosolids are applied to the land.

Instead, EPA will focus its enforcement efforts on a class of “major” potentially responsible parties.  These are “parties that have played a significant role in releasing or exacerbating the spread of PFAS into the environment, such as those who have manufactured PFAS or used PFAS in the manufacturing process, and other industrial parties.”  EPA noted that it will make CERCLA Enforcement decisions based on the following factors:

  • Whether the entity is a state, local, or Tribal government, or works on behalf of or conducts a service that otherwise would be performed by a state, local, or Tribal government.
  • Whether the entity performs a public service role in:
    • Providing safe drinking water;
    • Handling of municipal solid waste;
    • Treating or managing stormwater or wastewater;
    • Disposing of, arranging for the disposal of, or reactivating pollution control residuals (e.g., municipal biosolids and activated carbon filters);
    • Ensuring beneficial application of products from the wastewater treatment process as a fertilizer substitute or soil conditioner; or
    • Performing emergency fire suppression services.
  • Whether the entity manufactured PFAS or used PFAS as part of an industrial process.
  • Whether, and to what degree, the entity is actively involved in the use, storage, treatment, transport, or disposal of PFAS.

EPA’s enforcement policy, however, will not limit the ability of other actors, such as states, localities, and private parties, to pursue entities under CERCLA in connection with PFOA and PFOS.

With the finalization of the rule, many entities will face new potential liability under CERCLA.  Additionally, this rule will result in additional obligations for transporters of PFOA and PFOS, since the Department of Transportation is required to regulate CERCLA hazardous substances in accordance with the Hazardous Materials Transportation Act.  Accordingly, companies should consider the use of PFOA and PFOS in their operations and supply chains, whether they will be required to comply with new reporting requirements, and whether they may be liable for potential cleanup costs.

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Photo of Thomas Brugato Thomas Brugato

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean…

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, and the Occupational Safety and Health Act.

Mr. Brugato has extensive experience with EPA’s Renewable Fuel Standard program. He also has particular expertise in advising companies on environmental-related issues arising in the context of product recalls (such as compliance with PHMSA’s hazardous materials transportation regulations), including recalls under NHTSA or CPSC jurisdiction. Finally, Mr. Brugato has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.

Photo of Tyler Williams Tyler Williams

Tyler Williams helps clients navigate complex regulatory questions and high-stakes commercial disputes. He advises both corporations and not-for-profits on how to prepare for and address climate change. As a litigator, Tyler’s experience with complex disputes in both state and federal court enables him…

Tyler Williams helps clients navigate complex regulatory questions and high-stakes commercial disputes. He advises both corporations and not-for-profits on how to prepare for and address climate change. As a litigator, Tyler’s experience with complex disputes in both state and federal court enables him to take on fast-moving, high-stakes matters in a variety of settings.

Tyler works with clients in a number of industries, including technology, financial services, and energy, among others, using his substantive experience in various stages of litigation, including:

  • dispositive motions;
  • depositions; and
  • fact and expert discovery.

Tyler has first chaired numerous depositions and drafted successful motions at various stages of litigation.

He also maintains an active pro bono practice, including helping not-for-profits explore novel ways to respond to climate change. Tyler was also part of a cross-office Covington team that successfully challenged the government’s rescission of the Deferred Action for Childhood Arrivals program.