EPA finalizes hazardous substance designation for PFOA and PFOS under CERCLA

April 26, 2024

EPA updates CERCLA rules for ‘forever chemicals’

The Environmental Protection Agency (EPA) issued a final rule on April 19, classifying Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonic Acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

This act, often referred to as the Superfund, aims to make known polluters responsible for the cleanup of contaminated sites.

The designation allows the EPA to compel those responsible for contamination to undertake cleanup efforts or reimburse the EPA for such activities.

Implications for local fire departments and public entities

In light of these new regulations, the EPA has clarified its position regarding local fire departments and other public entities that utilize these chemicals without direct involvement in their production.

The EPA’s discretion is guided by the consideration of equitable factors, often exempting local fire departments from enforcement actions.

These entities commonly encounter PFOA and PFOS in their fire-fighting foam and gear, known as aqueous film forming foam (AFFF), which is essential for fire suppression and safety training.

Health risks and legislative response

PFOA and PFOS, often called “forever chemicals” due to their persistence in the environment and human body, are associated with numerous health risks including various cancers, thyroid disease, and respiratory illnesses.

Recent years have seen a heightened public and legislative focus on these chemicals, prompting more stringent reporting requirements and proactive enforcement measures to address the contamination, particularly in real estate transactions in affected areas.

EPA’s enforcement discretion and policy

On April 19, the EPA also released a memo detailing its enforcement discretion and settlement policies concerning PFAS under CERCLA.

The memo stated: “State or municipal airports and local fire departments provide a public service by preparing for and suppressing fire emergencies and protecting public safety.

“They do not manufacture PFAS nor use PFAS as part of an industrial process.”

It continues, recognizing the mandatory use of AFFF in these departments due to federal regulations, which necessitates adherence to stringent handling, storage, and disposal regulations.

Continued protection for fire services

The EPA acknowledges the unique position of fire services, highlighting the non-manufacturing role of local fire departments and the necessity of using AFFF in life-saving operations.

This acknowledgment is crucial for ensuring that fire services are not unduly burdened by the costs associated with PFAS contamination they did not cause.

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