EPA Finalizes PFAS Superfund Rule

Newly final rule expected to trigger third-party lawsuits

Dismissing concerns about widespread liability for entities that may have interacted with certain "forever chemicals", the U.S. Environmental Protection Agency (EPA) finalized the designation of two of the most widely used per- and polyfluoroalkyl substances (PFAS) as hazardous substances. AGC has been raising awareness about liability concerns for contractors who may have encountered PFAS on jobsites during dewatering or earthmoving activities--including a recent letter to the U.S. Senate Committee on Environment and Public Works.

EPA also released a new enforcement discretion policy-indicating it will not target some entities, such as landfills and utilities, that meet so called equitable factors. However, EPA's policy does not guard against third-party lawsuits.

EPA is focusing this effort on a handful of PFAS, chiefly perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) that are considered ubiquitous, meaning that trace amounts are found nearly everywhere. PFOA and PFOS can be found even in undisturbed, greenfield areas.

EPA has not taken this "direct to Superfund" approach with any other chemical previously, and it plans to continue down this path with other PFAS in the future. Superfund (or CERCLA) law allows the government and private entities to hold parties responsible for cleanup costs, if they are found to have any connection (operator, arranger, transporter) to the release of hazardous substances. Under the rule, entities are required to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound within a 24-hour period to the National Response Center, State, Tribal, and local emergency responders. The listing will trigger additional requirements, such as under the Hazardous Materials Transportation Act.

The Department of Defense is expected to face numerous cleanups on its properties, primarily due to the use of firefighting foams containing PFAS. The new rule also requires federal entities to disclose information related to PFOA or PFOS when transferring or selling their properties.

For more information, contact Melinda Tomaino at [email protected].