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EPA Pushes Back PFAS Hazardous Substance Designation

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On June 13, 2023, the Environmental Protection Agency (EPA) released its Spring 2023 Unified Agenda, which pushes back the estimated publication of a final rule designating certain per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, the final rule on PFAS CERCLA designation for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) has been delayed from August 2023 to February 2024.

The EPA’s Spring 2023 Unified Agenda also delayed the addition of PFAS to the Toxics Release Inventory (TRI). The EPA is now targeting to publish its proposed rule adding PFAS to the TRI in December 2023 and finalize the rule in November 2024, a delay of seven and nine months, respectively.

The designation of PFAS as hazardous substances under CERCLA would establish liability for current and former owners and operators of facilities where hazardous wastes were released or disposed, as well as generators and arrangers of disposal or transportation of hazardous substances and transporters of hazardous substances. This means that any entity handling designated PFAS could become liable for the recovery and remediation costs of PFAS releases or threatened releases and would need to comply with federal law on transportation and disposal of hazardous waste. The delay in the CERCLA designation presents several implications, including the potential for broader hazardous substances designations and more time for congressional action.

The delay also gives Congress more time to respond to the proposed designation and offer statutory protections for water and wastewater utilities and other passive receivers such as solid waste disposal facilities and composting facilities. The delay may also indicate that EPA is taking time to further develop its CERCLA Enforcement Discretion Policy. In the event that Congress does not provide a statutory exemption for water systems and other passive receivers, the policy would clarify EPA’s intention to focus enforcement of the new CERCLA designations on PFAS manufacturers and those whose conduct releases significant amounts of PFAS into the environment. The policy is expected to recommend non-enforcement against passive receivers.

While the delay could spell relief for passive receivers, it is an unwelcome extension for some landowners and prospective purchasers of land that potentially contains PFAS. In the interim, environmental site assessments will likely increasingly evaluate PFAS, and site cleanup decisions may be informed by EPA’s list of risk-based regional screening values.

Other upcoming PFAS regulations on track include the PFAS National Primary Drinking Water Regulation rulemaking, an anticipated proposed rulemaking to add PFOA, PFOS, perfluorobutane sulfonate (PFBS), and GenX (a subset of PFAS chemicals) to the Resources Conservation and Recovery Act (RCRA) list of hazardous constituents, and a significant new use rule under the Toxic Substances Control Act (TSCA) that would require PFAS manufacturers and importers to notify EPA before resuming the manufacturing or import of any PFAS for a significant new use. All of these upcoming PFAS regulations will create far-reaching effects once finalized.

Insights

Alert

EPA Finalizes PFAS Safe Drinking Water Regulations

April 16, 2024

On April 10, 2024, the U.S. Environmental Protection Agency (EPA) announced the final National Primary Drinking Water Regulation (NPDWR) under the Safe Drinking Water Act. The NPDWR established legally enforceable levels, called Maximum Contaminant Levels (MCLs), for six per- and polyfluoroalkyl substances (PFAS) in drinking water. 

Alert

EPA Proposes Adding Nine PFAS to RCRA

February 21, 2024

EPA has announced a proposition to add nine PFAS to the list of hazardous wastes under the Resource Conservation and Recovery Act (RCRA).

Published Article

PFAS Issues in the Cannabis Industry

January 16, 2024

Of Cousel Michael Blumenthal (Cleveland) and Member and Co-Chair of McGlinchey's Cannabis group Heidi Urness (Seattle) published an article in Food Safety Magazine focusing on the potential risks regarding per- and polyfluoroalkyl substances (PFAS) in the cannabis industry and the need for state-level regulations.

Alert

Ohio Appeals Court Issues Landmark PFAS Decision

January 3, 2024

The case of Hardwick v. 3M, a Per- and polyfluoroalkyl substances (PFAS) class action lawsuit filed in Ohio, has been marked as one of the most significant legal cases in recent history.

Alert

Environmental Justice and Impact on Manufacturers

December 6, 2023

In recent weeks, the U.S. Environmental Protection Agency (EPA) released the draft 2023 Environmental Justice Guidance Document (Guidance), a revision of the EPA’s “Technical Guidance for Assessing Environmental Justice in Regulatory Analysis.”

In the Media

PFAS takes center stage at IEC Expo Theater

November 29, 2023

A presentation by Michael Blumenthal during the International Elastomer Conference was covered extensively in Rubber News. The conference, which took place in Cleveland on October 17, 2023, was hosted by the Rubber Division of the American Chemical Society.

Presentation

PFAS Mitigation Strategies and the Regulatory Environment

October 17-18, 2023

Michael Blumenthal and David Waxman (Cleveland) presented on PFAS Mitigation Strategies and the Regulatory Environment at the 2023 International Elastomer Conference in Cleveland, Ohio, October 17-18, 2023.

Alert

How the Sackett Decision Changed the Chevron Doctrine

July 18, 2023

The Chevron doctrine is one of the most important principles of administrative law in the United States. It states that when a federal statute is ambiguous, courts should defer to the reasonable interpretation of the agency that administers the statute, unless Congress has clearly expressed a different intent. The doctrine, which was established by the Supreme Court in Chevron v. NRDC (1984), aims to respect the expertise and policy choices of executive agencies, as well as the separation of powers between the branches of government.

Alert

EPA Adds 9 PFAS to Toxic Release Inventory List

July 6, 2023

The EPA has recently finalized the addition of nine per- and polyfluoroalkyl substances (PFAS) to the Toxic Release Inventory (TRI) reporting program. This change came ahead of the annual July 1st deadline for submitting TRI reports.

Alert

Contamination, PFAS, and the Cannabis Industry

June 28, 2023

Per- and polyfluoroalkyl substances (PFAS) are a class of man-made chemicals used in various industries, such as food packaging, cosmetics, and household products. More than 10,000 chemical substances can be classified as PFAS in the United States. However, despite their broad use, several studies have identified potential health risks associated with these chemicals.

Alert

EPA Planning to Implement Strict Ethylene Oxide (EtO) Emissions

June 13, 2023

On December 14, 2022, Plaintiffs California Communities Against Toxics (CCAT), Clean Power Lake County, Rio Grande International Study Center, Sierra Club, and Union of Concerned Scientists filed a complaint in the U.S. District Court for the District of Columbia alleging that the Environmental Protection Agency (EPA) had failed to perform its nondiscretionary duty to “review, and revise as necessary” the National Emission Standards for Hazardous Air Pollutants (NESHAP): Ethylene Oxide Emissions Standards for Sterilization Facilities at least every eight years.

Alert

EPA PFAS Enforcement Has Begun

May 30, 2023

The U.S. Environmental Protection Agency (EPA) says it has taken its first-ever Clean Water Act (CWA) enforcement action against water pollution by so-called “forever chemicals” from a West Virginia chemical plant. On April 26, 2023, EPA Ordered Chemours Co., owner of Washington Works near Parkersburg, West Virginia, to take action aimed at reducing the levels of perfluoroalkyl and polyfluoroalkyl substances (PFAS) the facility discharges into the Ohio River.

Environmental Law Alert

PFAS in the Food and Beverage Industry: The EPA’s Next Target

April 12, 2023

The food and beverage industry faces a growing concern regarding per- and polyfluoroalkyl substances (PFAS), a group of synthetic chemicals that studies have shown may demonstrate adverse effects to health and the environment. As enforcement and litigation increase, these industries must understand the potential impacts to their businesses. This is especially true as PFAS are scheduled to become a “Hazardous Substance” under CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) in August of 2023.

Alert

EPA Sets PFAS Enforcement Sights on Manufacturing Industry

April 10, 2023

PFAS are dominating the environmental health news cycles by the destruction and irreparable harm they cause to people and the environment. These substances have been found to pose significant health risks, including cancer, thyroid disease, and immune system disorders.

Alert

EPA Recommends Cybersecurity Improvements for Water Systems

April 3, 2023

On March 3, 2023, the U.S. Environmental Protection Agency (EPA) issued a memorandum to help improve the cybersecurity posture guarding the nation’s water filtration systems. The guidelines, developed with input from industry experts and various government agencies, provide recommendations for utilities to improve their security and reduce the risk of cyber-attacks. These guidelines indicate that the EPA will aggressively enforce stringent cybersecurity standards in the future.