The Environmental Protection Agency (EPA) has issued a rule designating two per- and polyfluoroalkyl substances (PFAS) as hazardous substances because those chemicals have been linked to cancers, immune and developmental damage to infants and children, and impacts on the liver and heart.

In further action, the EPA says it will not pursue imposing the costs of cleaning up PFAS substances from “passive receivers” of PFAS who did not produce those chemicals, such as municipalities, water utilities, farmers, municipal landfills, water utilities, municipal airports, and local fire departments.

On April 19, 2024, the EPA announced it was designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. Designating PFOA and PFOS as hazardous substances enables leaks, spills, and other releases of those chemicals to be investigated and cleaned up, thereby addressing PFOA and PFOS contamination, EPA says.

EPA’s Superfund program has worked effectively for more than 40 years to target and prioritize cleanups of the nation’s most contaminated sites that present unacceptable risks to human health and the environment, the agency says. The Superfund program addresses more than 800 hazardous substances, including widespread, highly mobile, and persistent chemicals like PFOA and PFOS, according to EPA. 

“Designating these chemicals under our Superfund authority will allow EPA to address more contaminated sites, take earlier action, and expedite cleanups, all while ensuring polluters pay for the costs to clean up pollution threatening the health of communities,” said EPA Administrator Michael S. Regan.

The final action on PFOA and PFOS substances, two widely used PFAS chemicals, is based on scientific evidence that those substances may present a substantial danger to public health or the environment when released into the atmosphere, EPA says. According to the agency, scientific evidence supports that PFOA and PFOS can accumulate and persist in the human body for long periods and that exposure to PFOA and PFOS is linked to adverse health effects.  

The PFOA and PFOS final rule builds on the PFAS drinking water standards that were finalized on April 10, 2024, and that sets limits on five individual per-and poly-fluoroalkyl (PFAS) substances, that—in addition to PFOA and PFOS substances—including PFNA, PFHxS, and HFPO-DA, and will help ensure that polluters pay to clean up their contamination, according to EPA.

However, leading U.S. senator questions if the EPA’s PFAS rules are enough to prevent “passive receivers” of PFAS substances that did not produce those chemicals from being held responsible for cleaning up PFAS contamination from water systems, and those costs would be passed on to consumers.

Sen. Shelley Moore Capito (R-W.Va.), the ranking member on the Senate Environment and Public Works (EPW) Committee, has said, “It’s not fair to penalize” the entities that are not the polluters, and that EPA’s CERCLA approach does not provide the agency with enough “flexibility to exempt innocent parties from liability for cleanup costs.” 

In addition, Capito told The Driller that the EPA needs to codify such an exemption so it is clear that the intent is to place cleanup costs on the polluters. The language in the rule “has to be written, specific enough to make sure that the intent is to have the polluter pay” for any cleanup and not passive receivers, she said.

In response to calls for passive receiver exemptions, the EPA issued a separate CERCLA enforcement discretion policy that says the EPA will focus enforcement activities on parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties. 

Furthermore, “the policy reflects that EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including farmers, municipal landfills, water utilities, municipal airports, and local fire departments,” the EPA says.

EPA says the final rule will be published in the Federal Register and will become effective 60 days after being published.

Click here to read the announcement: “Biden-Harris Administration Finalizes Critical Rule to Clean up PFAS Contamination to Protect Public Health.”

Click here for details on EPA’s PFAS Enforcement Discretion and Settlement Policy Under CERCLA.