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On April 10, 2024, the Environmental Protection Agency
(“EPA”), under the Safe Drinking Water Act
(“SDWA”), issued the final National Primary Drinking
Water Regulation (“NPDWR”) that sets enforceable limits
in drinking water for six per- and poly-fluoroalkyl substances
(“PFAS”). See 88 Fed. Reg. 18638. Then, on April
19, 2024, EPA finalized a rule that designates two PFAS as
hazardous substances under the Comprehensive Environmental
Response, Compensation, and Liability Act (“CERCLA”).
These rules are consistent with EPA’s recent regulatory agenda that has called
for an increased focus on the regulation of PFAS.The waste
industry and others affected should strictly analyze the rules and
associated guidance for insight into how they may change operations
as these new requirements become effective.
PFAS NPDWR Rulemaking
The NPDWR rule delineates the Maximum Contaminant Level Goals
(“MCLGs”) and Maximum Contaminant Levels
(“MCLs”) for six specific PFAS compounds, including
perfluorooctanoic acid (“PFOA”), perfluorooctane sulfonic
acid (“PFOS”), perfluorononanoic acid (“PFNA”),
GenX chemicals: hexafluoropropylene oxide dimer acid
(“HFPO-DA”), perfluorohexane sulfonic acid
(“PFHxS”), and perfluorobutane sulfonic acid
(“PFBS”). MCLGs are health-based goals set at a
non-enforceable level. MCLs, however, are legally enforceable
standards that are set as close to MCLGs as feasible, taking into
consideration the best available treatment technology and
costs.
For PFOA and PFOS, EPA set the MCLGs at zero and the MCLs at 4
parts per trillion (“ppt”). For PFNA, HFPO-DA, and PFHxS,
EPA set the MCLGs and the MCLs at 10 ppt. For mixtures containing
two or more PFNA, HFPO-DA, PFHxS, or PFBS, EPA set the MCLGs and
the MCLs at a unitless amount, adopting a hazard index approach
that determines if the combined levels of these PFAS in the
drinking water pose a potential risk and require action. The
finalized rule does not specify an individual MCLG or MCL for
PFBS.
The NPDWR rule requires public water systems (“PWS”)
to comply with the PFAS MCLs five years from the date of the
publication of the rule in the Federal Register. Specifically, the
rule gives PWS three years to complete initial monitoring for these
PFAS. Thereafter, they must provide public notice of the levels and
will have two years to implement treatment methods. The NPDWR rule
has effects on other waste facility operators as well, which
effects include how these operators will approach leachate
management and groundwater monitoring efforts. Several landfill
operators have already stated that they will be researching and
testing various leachate treatment methods in light of the NPDWR
rule, including reverse osmosis and foam fractionation
technologies.
Waste operators should analyze EPA’s updated disposal
guidance that offers research showing the types of PFAS found in
leachate and the various technologies available for treatment or
disposal.
Designation of PFOA and PFOS as CERCLA Hazardous
Substances
EPA’s rule that designates PFOA and PFOS as CERCLA
hazardous substances authorizes it to require potentially
responsible parties (“PRPs”) to address PFOA and PFOS at
contaminated sites by performing adequate cleanup, or by paying
damages for such cleanup. EPA also issued an enforcement discretion
policy in an effort to alleviate the concerns from certain
industries, such as landfills and water entities, who describe
themselves as “passive receivers” of PFAS, meaning they
do not generate PFAS or have control over PFAS that enters their
facilities.
The enforcement discretion policy provides that “EPA will
focus on holding responsible entities who significantly contributed
to the release of PFAS into the environment, including parties that
manufactured PFAS or used PFAS in the manufacturing process,
federal facilities, and other industrial parties.” EPA, for
purposes of the policy, characterizes these parties as “major
PRPs.” EPA does not, however, “intend to pursue entities
where equitable factors do not support seeking response actions or
costs under CERCLA, including, but not limited to, community water
systems and publicly owned treatment works, municipal separate
storm sewer systems, publicly owned/operated municipal solid waste
landfills, publicly owned airports and local fire departments, and
farms where biosolids are applied to the land.” Additionally,
“EPA understands that entities are concerned about being sued
by other PRPs for PFAS cleanup costs under CERCLA[,]” so it is
seeking, in CERCLA settlements with major PRPs, “to require
those settling parties to waive their rights to sue parties that
satisfy the equitable factors.” Thus, “[t]he major PRPs
would then not be able to sue those non-settling parties for
matters addressed under the settlement.”
EPA will exercise its enforcement discretion to not pursue
additional entities for PFAS response actions or costs under
CERCLA, based on the following factors:
(1) Whether the entity is a state, local, or Tribal government,
or works on behalf of or conducts a service that otherwise would be
performed by a state, local, or Tribal government.
(2) Whether the entity performs a public service role in:
- Providing safe drinking water;
- Handling of municipal solid waste;
- Treating or managing stormwater or wastewater;
- Disposing of, arranging for the disposal of, or reactivating
pollution control residuals (e.g., municipal biosolids and
activated carbon filters); - Ensuring beneficial application of products from the wastewater
treatment process as a fertilizer substitute or soil conditioner;
or - Performing emergency fire suppression services.
(3) Whether the entity manufactured PFAS or used PFAS as part of
an industrial process.
(4) Whether, and to what degree, the entity is actively involved
in the use, storage, treatment, transport, or disposal of PFAS.
Possible Impacts to Industrial Facilities
Additional entities may encompass industrial facilities who use
PFAS containing materials to fight fires. Consistent with EPA’s
practice of considering fairness and equitable factors, EPA may
forego taking enforcement actions against such facilities by using
the factors above to determine that they are not “major
PRPs,” in that they do not significantly contribute to the
release of PFAS by manufacturing it, or using it in manufacturing
processes. Indeed, EPA specifically notes in its enforcement
discretion policy that fire departments store and use aqueous film
forming foam (“AFFF”), which may contain PFAS, to
suppress fire emergencies. EPA states that these fire departments
must follow all applicable regulations governing the use, storage,
handling, and disposal of AFFF that contains PFAS, and that it
expects them “to exercise a high standard of care to limit the
release of PFAS, minimize and contain releases, and forgo, when
possible, the use of AFFF in the process of cleaning equipment and
training exercises.” Although industrial facilities are not
fire departments, they similarly use PFAS containing materials to
suppress fire emergencies, and should be mindful of this guidance,
along with the factors above, in an attempt to avoid any
enforcement action taken by EPA.
Possible Impacts to Waste Industries
While the enforcement discretion policy may alleviate some of
the concerns expressed by landfill operators, it falls well short
of the protections sought by the industry. Since 2022, waste
industries have asked Congress to provide a narrow CERLCA exemption
for “passive receivers,” and in particular, landfill
operators have stated that EPA’s designation of PFOA and PFOS
as hazardous substances may force them to incur exorbitant
costs in inspecting waste for the presence of PFAS (which can be
present in a myriad of materials), and processing and/or rejecting
waste when PFAS are found. Such costs could present significant
burdens to landfill operators even if they escape CERCLA liability,
as questions remain as to how PFAS will be handled under other
regulatory schemes applicable to landfills (e.g., the National
Pollutant Discharge Elimination System permit system). Landfill
operators should also note that the enforcement discretion policy
mentions only “publicly owned/operated” landfills, which
seemingly could create vulnerability for privately owned or
operated landfills who nevertheless fulfill vital public duties by
serving as safe disposal sites for municipal solid waste. The
factors mentioned above, however, may mitigate such vulnerability
depending on the specific facts and circumstances.
Without legislation that provides the waste industry the CERCLA
exemption it is seeking, the enforcement discretion policy appears
to be the best protection afforded to these “passive
receivers,” meaning the waste industry should strictly analyze
the policy to fully understand EPA’s approach to enforcing its
rule.
Regardless of the potential protection afforded by EPA’s
enforcement discretion policy, all industries should be on notice
that the policy only pertains to EPA’s decision not to pursue
enforcement action. The enforcement discretion policy does not
apply to private parties seeking recovery of costs incurred by them
in response to a release of hazardous substances,
including PFOA and PFOS.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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