PFOA, PFOS Proposed as Superfund Substances

Update 09/06/22

US EPA published the proposed rule to add PFOA and PFOS to the list of hazardous substances under CERCLA/Superfund to the Federal Register on September 6. 

Public comments will be accepted until November 7, 2022. EPA recommends that comments about the information collection provisions in the proposed rule (e.g., release reporting) be submitted before October 6 to ensure they are considered. 

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US EPA is proposing to add two of the most prevalent per- and polyfluoroalkyl substances (PFAS), PFOA and PFOS, to the list of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), often referred to as Superfund.

A pre-publication copy of the proposed rule is available now.  

Adding PFOS and PFOA—including their salts and structural isomers—as CERCLA hazardous substances will have impacts for contaminated site cleanup and chemical release reporting, including:

• Sites contaminated with PFOA or PFOS can be listed as Superfund sites.
• Superfund money can be used to clean up sites contaminated with PFOA or PFOS.
• Release reporting will be required for these chemicals.
• Reportable Quantity (RQ) values will be added under CERCLA (40 CFR 302.4).
• State and Federal authorities may seek damages or cleanup costs from parties responsible for PFOA or PFOS contamination.

Sometimes referred to as “forever chemicals,” PFAS are a group of more than 9,000 synthetic substances commonly found in surface coatings, food packaging, textiles, firefighting foams, and other products. PFAS chemicals are resistant to heat, oils, water, and staining—properties that make them valuable for a variety of industrial and commercial uses, but also contribute to their persistence in the environment.

Production of PFAS has been largely phased out in the United States. Some products containing PFAS remain available, however, and PFAS may still be imported into the US for a limited number of uses.

Release Reporting and RQ

EPA is proposing to add PFOA and PFOS to the list of hazardous substances with a reportable quantity (RQ) of one pound.

If one pound or more of PFOA or PFOS were released in a single release (or a combination of releases within a 24-hour period), an immediate report would be required to the National Response Center (NRC). If the release could result in exposure to persons outside the boundaries of the facility, it must be reported immediately to potentially affected local and state response organizations.

More: CERCLA and EPCRA Release Reporting

In the proposed rule, EPA states that they may consider revising the RQ in the future, once more information about the size and risks of PFOA or PFOS releases is available.

Hazardous Materials Shipping

CERCLA requires that US DOT regulate all listed “hazardous substances” as hazardous materials in transportation (42 USC §9656).

Appendix A to the 172.101 Hazmat Table lists hazardous substances and their reportable quantities. Once a new hazardous substance is added to the CERCLA list, it also becomes a regulated hazardous material for transportation purposes.  

Other Recent PFAS Actions from US EPA

EPA’s proposal to add PFOA and PFOS to the CERCLA hazardous substances list is agency's latest action to address the effects of PFAS on human health and the environment.

In June 2022, EPA released drinking water health advisories for four PFAS chemicals, including PFOA and PFOS. The new, near-zero advisory levels reflect EPA’s belief that negative health effects from PFAS may occur even at very low concentrations.

In the past two years, EPA has also:

• Added many PFAS chemicals to the EPCRA Toxics Release Inventory (TRI) reporting requirements   
• Announced two planned hazardous waste rules concerning PFAS
• Proposed TSCA chemical reporting rules for PFAS
• Released an enforcement alert regarding PFAS in ski wax products

We will update this post with a deadline for public comments once EPA publishes the proposed rule to the Federal Register. 

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Tags: CERCLA, hazardous substances, PFAS, release reporting, TSCA