Polyfluoroalkyl substances (Pfas)

Part eiGHt

by Bruce Marvin, John Merrill, Balaji Seshasayee, Manmeet “Meeta” Pannu, Jim Strandberg

In previous HydroVisions, GRA’s voluntary technical experts noted the continuing state and federal efforts to regulate Perand Polyfluoroalkyl Substances (PFAS). This article discusses a recent proposed ruling by the United States Environmental Protection Agency (USEPA) and its potential implications.

Listing of PFOA and PFOS as Hazardous Substances

On August 26, 2022, the USEPA proposed to designate two of the most studied PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This is the first time that USEPA utilized its authority under CERCLA to add compounds to the current list of about 800 hazardous substances under 40 Code of Federal Regulation (CFR) Section 302.4. The public comment period ended on November 7, 2022, and USEPA is anticipating adoption by August 2023. This designation provides a mechanism for USEPA to mandate action, including assessment and remediation, at sites potentially impacted by PFAS.

Listing a compound as a hazardous substance under CERCLA has very different implications than the previous listing of a compound as a Hazardous Waste under the Resource Conservation and Recovery Act (RCRA), a Pollutant under the Clean Water Act (CWA), or a Contaminant under the Safe Drinking Water Act (SDWA). Listing as a CERCLA hazardous substance has both direct and indirect effects. The direct effects are limited: (i) if one pound or more of PFOA or PFOS is discharged in a 24-hour period, then reporting to USEPA and other agencies is required and (ii) transportation of PFOA and PFOS will need to meet specific US Department of Transportation requirements. These direct effects are limited because PFOA and PFOS are no longer manufactured nor widely found in commerce today in the United States.

The most significant implications of the hazardous substance listing are indirect, and are derived from the Response Authorities identified in the CERCLA regulation:

42 U.S. Code § 9604(a)(1) “Whenever…any hazardous substance is released or there is a substantial threat of such a release…the President is authorized…to remove or arrange for the removal of…such hazardous substance…at any time… or take any other response measure…”

Polyfluoroalkyl substances (Pfas)

Thus, unlike listings under RCRA, SDWA, or CWA, there are no numeric criteria (such as a concentration, mass discharged, etc.) that define when USEPA can or cannot mandate investigation or remediation. The USEPA simply needs to know or suspect there may have been a release or believes there is a threat of a release, to require assessment and other responses. Thus, once a substance is classified as a hazardous substance under CERCLA, USEPA will have broad latitude to mandate responses at a wide variety of sites, including industrial and commercial facilities as well as wastewater treatment plants and other municipal facilities. Sites that are or were previously designated as Superfund sites can also be subject to additional review for PFOA and PFOS contamination. If PFAS is found, these sites can be re-opened for investigation, existing remedies may require modification, and remediation cost attribution may be renegotiated between parties that the USEPA determines are responsible for the contamination. Responsible parties can be forced to reimburse the USEPA if the agency undertakes the remediation under the CERCLA designation.

The USEPA has indicated that it will likely prioritize large industrial facilities and sites where Aqueous Film Forming Foam (AFFF) fire suppressants were released. During a webinar on October 25, 2022 (available at https://youtu. be/4S1wxAP4nZI?t=3055), USEPA Region 2 Deputy Administrator Walter Mugdan said, “There is no exemption in the law that would protect let’s say a wastewater treatment plant that has received PFAS in the sewage that gets...into surface water somewhere.” But he added that USEPA will likely focus on major PFAS releases when evaluating sites for placement on the Superfund National Priorities List (NPL), making the prospects for water treatment facilities being identified as responsible parties for cleanups as highly unlikely. However, Mugdan added, “But there’s no legal ‘get out of jail free’ card here.”

The PFAS CERCLA designation is anticipated to have significant financial impacts on companies with legacy PFOA and PFOS contamination issues. Some of these industries, including water utilities and waste management companies, are already pursuing PFAS CERCLA exemptions from USEPA and it is expected that many legal challenges will be filed against the USEPA designation. Whether through direct enforcement action, re-opener remediation actions, or lawsuits for contribution, the costs for site cleanup are projected to be up to a billion dollars per year for existing non-Federal Superfund sites and for “new” sites plus reopened sites.

Polyfluoroalkyl substances (Pfas)

ASTM Standards and PFAS Assessment

In November 2021, ASTM International (ASTM) updated its standard ASTM 1527-13 for Phase I Environmental Site Assessment (ESA), which among other things, included an assessment for emerging contaminants and particularly PFAS. On March 14, 2022, USEPA published a Direct Final Rule that confirmed the new ASTM E1527-21 could be used to satisfy USEPA’s All Appropriate Inquiry (AAI), as defined in 40 CFR 312. However, not long after, on May 2, 2022, USEPA withdraw the Final Rule to address the negative comments received on this rulemaking, including the United States Chamber of Commerce objection to the inclusion of PFAS in ASTM E1527 Standard Practice. The proposed USEPA CERCLA PFAS hazardous substance designation would require that Phase I ESAs, conducted pursuant to the ASTM E1527 Standard Practice and USEPA’s AAI Rule, include an assessment of whether PFAS compounds have ever been stored, used, or manufactured at a property, and, whether they may have potentially impacted the property. Presently, since PFAS compounds have not been designated as CERCLAlisted hazardous substances, the ASTM E1527 Standard Practice and the AAI Rule do not require an assessment of PFAS in the scope of a Phase I ESA. If and when the USEPA’s proposed CERCLA PFAS hazardous substance designation is adopted, questions remain as to how this designation will affect real estate transactions currently using the ASTM152713 Standard Practice and AAI Rule for qualification as Bona Fide Prospective Purchasers after this designation. Caveat emptor…let the buyer beware, appears particularly relevant in this situation when evaluating whether a property is a source of or affected by releases of PFAS to the environment and the potential for CERCLA liability. The challenges associated with assessing PFAS in property transactions further highlights some of the implications of this proposed rulemaking.

California Regulatory Landscape

Regulators interviewed for this article said it is too early to assess the implications of USEPA’s proposed designation of PFOA or PFOS as CERCLA hazardous substances. There will be uncertainties until the rule is final. There is no focus currently to drive the investigation and remediation of PFAS sites. It was noted that an analytical test method for analysis of non-potable water has yet to be approved, although USEPA Draft Method 1633 is published and pending review and approval. Rather, the more immediate issue is the anticipated release of draft Maximum Contaminant Level (MCL) Goals for PFOA and PFOS, originally scheduled by December 31, 2022. It is unclear if USEPA will release MCLs by December 31, 2023, as planned.

On November 10, 2022, California’s Attorney General filed a lawsuit against more than a dozen companies seeking damages for PFAS contamination throughout the state. The lawsuit targets PFAS manufacturers, PFAS distributors, and AFFF manufacturers and suppliers and alleges that they “created and/or contributed to a public nuisance, harmed and destroyed natural resources, marketed defective products, failed to provide adequate warnings concerning the use of their products, and engaged in unlawful business practices.” The complaint seeks damages for contamination associated with seven of the thousands of PFAS compounds, including PFOA and PFOS. Damages sought by California include past, present, and future costs to investigative and remediate PFAS contamination, including the proper disposal of PFAS wastes. The proposed USEPA PFAS CERCLA hazardous substance designation will likely bolster California’s lawsuit and propel similar actions by other states and entities seeking damages for PFAS contamination.