In the Byzantine complexity of the Clean Air Act (CAA), EPA’s “once in, always in” policy regarding hazardous air pollutants (HAP) has been particularly confounding.  And now it’s back in play, through regulatory revisions proposed by EPA in late September.  

EPA’s proposal would prohibit a source from reducing its potential emissions of HAP to below “major source” thresholds (and thus avoiding more stringent regulation) unless the source’s post-reduction emissions of HAP are limited to the level that would have been allowed if the source had remained subject to the “major source” regulation.  In other words, a source may not reduce its potential HAP emissions enough to avoid “major source” controls, and then increase its actual emissions to a level higher than could be emitted with such controls.  In addition, the proposal would require the post-reduction emissions limit to be federally enforceable – that is, enforceable by EPA and by citizen groups under the Clean Air Act’s citizen suit provisions.  The proposed rule would also apply retroactively, back to January 25, 2018 (more on this date below), thus potentially pulling a previously-reclassified source back into “major source” status unless it obtains such a federally enforceable limit. 

Some background:  Under the CAA, a “major source” of HAP is defined as having the potential to emit at least (A) ten tons per year of any substance that the CAA or derivative EPA regulations identify as a HAP; (B) twenty-five tons per year of all HAP in total; or (C) any lower threshold that EPA decides is appropriate for a particular HAP.  A major source of HAP is subject to emission standards that require Maximum Achievable Control Technology (MACT).  By contrast, a non-major source of HAP is subject to standards that EPA to date has typically chosen to make less stringent than MACT (and for some source categories, has not yet adopted).

In effect, EPA’s proposed revisions would partially restore a much-criticized policy – known as “once in, always in” – that EPA announced in 1995 but withdrew in 2018.  The policy stated that if a source ever had the potential to emit HAP above the major source threshold after the first substantive compliance date of an applicable MACT standard, the source is “permanently subject” to the standard, even if the source later reduced its potential to emit HAP to below major source levels.  In other words:  once in, always in.  EPA claimed this policy was compelled by the “language and structure” of the CAA, and an underlying Congressional intent to limit or eliminate HAP emissions generally. 

On January 25, 2018, EPA withdrew the “once in, always in” policy after concluding from further review that it was not consistent with the CAA’s HAP provisions and exceeded EPA’s CAA authority.  Following the withdrawal, EPA promulgated regulations in 2020 (known as the “Major MACT to Area” or “MM2A” rule) to confirm that a source could indeed reclassify itself at any time to non-major HAP status (and for most source categories, thereby avoid MACT) if the source reduced its potential emissions of HAP to below the “major source” levels. 

The pending proposed revisions would add conditions to any such re-classification, by requiring a federally enforceable limit to prevent any subsequent emissions of HAP beyond previously-applicable MACT levels.  As in the original “once in, always in” policy, the preamble to the proposed revisions claims a basis in Congressional intent to limit or eliminate HAP emissions. Also as in the “once in, always in” policy, however, the preamble does not seem to address how the proposed conditions for MM2A reclassification square with the lack of any such conditions in the CAA’s definition of a “major source” of HAP, or with EPA’s available, but unused, CAA authority to adopt or tighten standards for non-major HAP sources if EPA thinks appropriate. 

EPA is taking public comments on the proposed revisions through November 13, 2023. 

The U.S. Environmental Protection Agency (EPA) released an advance notice of proposed rulemaking with a focus on modifying the treatment and handling of “empty” containers and drums under the Resource Conservation and Recovery Act (RCRA). The EPA is soliciting information and requesting comments “to assist in the potential development of non-regulatory and regulatory options that would ensure the proper management of used industrial containers that held hazardous chemicals or hazardous waste, up to and including the drum reconditioning process.”

The EPA is seeking comments on a variety of concepts, including:

  • Eliminating 40 CFR 261.17’s “empty” container exemption;
  • Modifying the requirements for a container to qualify as “empty”;
  • Expanding record-keeping, labeling, and certification requirements for generators;
  • Increasing requirements surrounding rinsate from drums; and 
  • Requiring all drum reconditions to obtain a full RCRA Subtitle C TSDF (Treatment, Storage, and Disposal Facility) permit or receive a variance.

Many of the regulatory changes being proposed in the advance notice would likely have a wide-ranging impact on manufacturers, recyclers, and even commercial operations, in addition to the more obviously impacted waste transporters and treatment, storage, and disposal operations.

The EPA set the comment deadline for September 25, 2023. Comments can be submitted at federalregister.gov.

On May 25, 2023, after more than 15 years of fighting, a couple contesting the Environmental Protection Agency’s assertion of jurisdiction over their residential lot as “waters of the United States” (WOTUS) under the Clean Water Act (CWA) scored a decisive victory in a U.S. Supreme Court decision, Sackett v. EPA. Chantell and Mike Sackett’s property, located near Priest Lake in Idaho, had wetland features but no direct contact with the lake or surface waters flowing into the lake. A road separates their lot from a larger wetland complex that flows into the lake. The U.S. Circuit Court of Appeals for the Ninth Circuit agreed that the EPA could impose CWA §404 permitting obligations on the Sackett’s filling of the wetlands on their land based on a site-specific determination that these and other area wetlands had a “significant nexus” to the chemical, physical, and biological integrity of Priest Lake as “traditional navigable waters.”

But the Supreme Court rejected this use of the “significant nexus” test. Following Justice Scalia’s opinion in the 2006 split decision Rapanos v. United States, the Sackett majority concluded that “navigable waters” are limited to only “relatively permanent, standing or continuously flowing bodies of water … described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” They held that “adjacent wetlands” regulated under the CWA “dredge and fill” permit program must have a “continuous surface connection” that makes them “indistinguishable” from such traditional navigable waters.

EPA and Army Corps of Engineers administer this CWA program, but have not yet issued any detailed responses. (Updates on the impact of Sackett will be available through the website links provided below.) There is certainly room for debate on the meaning of “indistinguishable” and “continuous surface connections” particularly when flooding or intermittent surface flows occur and where dunes, berms, levees, dams, ditches, culverts, drainage pipes, and other features either prevent or provide for connections between wetlands and traditional navigable waters. Some states and several environmental groups are also evaluating ways in which other programs might be expanded in the wake of Sackett. The decision is expected to curtail the circumstances when CWA §404 permitting applies to utilities, developers, farmers, and landowners conducting construction and filling activities and businesses harvesting timber or extracting other natural resources.

Attorney Melvin’s additional articles and presentations on water and wastewater topics appear in Environmental Law+ blog and other Robinson+Cole publications.

Below is an excerpt of an article published by the Connecticut Business and Industry Association (CBIA) on April 12, 2023.

OSHA is poised to revive a policy that would require employers to permit union officials to take part in agency inspections even if the union does not represent employees at the facility being inspected. 

OSHA previously maintained such a policy between 2013 and 2017. 

The policy arose out of a memo issued in response to a labor union’s inquiry. Known as the Fairfax Memo—a reference to the memo’s author—the policy was withdrawn in 2017 as the interpretation underpinning it faced legal challenges.

During the fall of 2022, OSHA issued a notice suggesting a return to the Fairfax Memo, but this time through promulgation of a regulation. 

The notice stated that a rule would be published in May of 2023 and that “[t]his rulemaking will clarify the right of workers … to specify … a union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer …” Read the article.

Last week EPA released its proposal for the first set of Maximum Contaminant Levels (MCLs) under the Clean Water Act for per- and polyfluoroalkyl substances (PFAS).  In contrast to non-enforceable health advisory levels introduced in 2016 and revised in 2022, MCLs constitute enforceable drinking water standards that will impact drinking water utilities and industry nationwide.  The proposal for enforceable drinking water standards marks the latest step in the evolution of PFAS from an emerging contaminant to a contaminant subject to enforceable regulations. 

The proposed rule sets standards for six PFAS compounds as follows:

*More information on how the Hazard Index will be calculated is available in an EPA fact sheet.

The proposed MCLs follow lifetime health advisory levels for PFOA, PFOS, GenX and PFBS issued by EPA in the summer of 2022.  The health advisory levels for PFOA and PFOS are 0.004 parts per trillion, which is a level that cannot yet be reliably detected in laboratories.  While the 4 ppt proposed MCL for PFOA and PFOS is low relative to the levels in place for other constituents, it is at least detectable using current technology.

In the preamble to the proposed rule, EPA indicated that no safe level for PFOA and PFOS has been identified.  Therefore, EPA is setting the non-enforceable, health-based Maximum Contaminant Level Goal (MCGL) at zero for both PFOA and PFOS.  Given that EPA requires the MCLs to be set “as close as feasible” to the MGCLs, the regulated community should be aware that EPA may move to further lower the limits for PFOA and PFOS as technology improves.   

We are also tracking a number of other PFAS-related developments, including that in August 2022, EPA released a proposed rule that would designate PFOA and PFOS as CERCLA hazardous substances.  A number of states (including California and Maine) have passed laws banning the use of PFAS in certain applications. 

On January 6, 2023, the U.S. Environmental Protection Agency (EPA) released a pre-publication copy of a Proposed Rule, which will lower the annual National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5). PM2.5 refers to PM with a diameter of 2.5 microns or less, which is about 3-5 percent of the width of a human hair. 

Source: https://www.epa.gov/sites/default/files/2016-09/pm2.5_scale_graphic-color_2.jpg

Sources of PM2.5

Sources of PM2.5 are varied and complex. Some fine particulate is emitted directly, such as from fuel combustion by vehicles or power plants, or from certain industrial and agricultural activity. But a significant amount of fine particulate is also created when gasses emitted by such or other sources react in the atmosphere. The picture is further complicated by significant sources outside familiar regulatory targets, particularly forest fires, as well as contributions from wind erosion of soils and minerals and international transport.

Revised PM2.5 Standards:  Process and Proposal

Under the Clean Air Act, EPA is required to periodically review all NAAQSs and revise them as necessary to protect public health (primary standards) and welfare (secondary standards), based on available scientific evidence and technical information. As a practical matter, EPA has adopted two PM2.5 NAAQSs: one for short-term exposure (24 hours), and another for annual exposure. The current standards for PM2.5 were established in 2012 and affirmed in 2020. Thereafter, several parties petitioned EPA to reconsider the 2020 decision, and in June 2021 EPA commenced the re-evaluation process.

In evaluating whether to lower the annual standard for fine particulate matter, EPA relied heavily on certain technical studies: the December 2019 Integrated Science Assessment for Particulate Matter, its May 2022 Supplement, and policy assessments prepared by EPA staff, as well as advice from EPA’s Clean Air Scientific Advisory Committee (CASAC). According to the Integrated Science Assessment, fine particulate matter exposure at concentrations allowed by the current annual standard may lead to statistically significant adverse health effects, including respiratory and cardiovascular issues. The CASAC agreed with EPA staff policy assessments that this evidence calls into question the adequacy of the primary annual standard for fine particulate matter and recommended that the standard should be reduced accordingly.

The Proposed Rule would lower the primary annual standard for PM2.5 from its current level of 12 micrograms per cubic meter (12 μg/m3) to a level between 9 and 10 μg/m3. However, in the Proposed Rule EPA also requests public comment regarding levels from 8 to 11 μg/m3.

The Proposed Rule would retain all other existing particulate matter standards (the primary 24-hour PM2.5 standard and the identical secondary standard; the secondary annual PM2.5 standard; and the primary 24-hour coarse particulate matter (PM10) standard and its identical secondary standard). However, although no changes are proposed to the 24-hour PM2.5 primary and secondary standards, EPA will take comment on reducing them from the current 35 μg/m3 to as low as 25 μg/m3.

Concurrent with the proposed NAAQS changes, EPA also proposes to revise its Air Quality Index, which provides information about daily ambient levels for PM and other pollutants, to improve public communications about the risks from fine particulate matter exposure. EPA further proposes to modify the nationwide PM2.5 monitoring network to enhance protection of air quality in communities overburdened by air pollution.

Notably, in presenting the Proposed Rule, EPA emphasizes the “environmental justice” (EJ) aspects in terms of communities potentially harmed by current levels of PM2.5

Anticipated impact

EPA’s Regulatory Impact Analysis document accompanying the Proposed Rule projects where air quality would not attain the proposed tightened annual PM2.5 standard, with the extent of impact depending on whether the standard is lowered to 10 μg/m3, 9 μg/m3, or 8 μg/m3. Under any of these scenarios, the most impacted state is California, particularly the Central Valley and southern California. Beyond that, impacts are highly scattered across the lower 48 states, and include several major urban areas. 

Source:  https://www.epa.gov/system/files/documents/2023-01/naaqs-pm_ria_proposed_2022-12.pdf

Outlook for final revised standards

Following publication of the Proposed Rule in the Federal Register, EPA will accept public comment for 60 days. According to its January 6 press release, the agency plans to finalize the new standards later this year. Regardless of where the final standard lands, it is certain to be challenged in court.

In a 50-year game of ping-pong, the Biden administration marked the end of 2022 by taking its turn revising the definition of “waters of the United States,” or “WOTUS” for short. This term determines where Clean Water Act (CWA) permits are required for wetland dredging and filling and pollutant discharges, as well as other CWA jurisdictional limits. On December 30, 2022, the Environmental Protection Agency and Army Corps of Engineers (together, the Agencies) released a pre-publication version of the “Revised Definition” WOTUS rule and additional guidance materials; but the regulation does not take effect until 60 days after its official publication (still pending).

The Biden administration’s new rule identifies five categories of WOTUS, starting with less controversial waterbodies, such as large, actually-navigable rivers and lakes known as “traditional navigable waters” (TNW). From there, the rule defines additional categories and subcategories of WOTUS by applying both standards offered in the plurality and concurring opinions of the Supreme Court’s 2006 Rapanos v. U.S. decision. As outlined below, this approach includes not only features meeting Justice Scalia’s test (“relatively permanent, standing or continuously flowing” waters and wetlands with continuous surface connections to such waterbodies) but also those swept in under Justice Kennedy’s “significant nexus” trigger (“significantly affect[ing] the chemical, physical, and biological integrity” of TNW):

Para.WOTUS Category Regulatory Triggers
(a)(1)Traditional navigable waters, territorial seas, and interstate waters, forming the core (and perhaps least controversial) category of jurisdictional waters
(a)(2)Impoundments of WOTUS identified in other categories, except (a)(5) local waters
(a)(3)Tributaries of TNW and other core (a)(1) waters and (a)(2) impoundments, limited to such streams, ponds, impoundments, and other tributary waterbodies:
(i)that are “relatively permanent, standing or continuously flowing” (as most followers of Justice Scalia would tolerate); or
(ii)that significantly affect the chemical, physical, or biological integrity of any core (a)(1) waterbody
(a)(4)Adjacent wetlands in locations meeting federal “wetland” criteria (hydrologic and vegetation) and:
(i)adjacent” (“bordering, contiguous, or neighboring”) to TNW or other core (a)(1) waters;
(ii)possessing a “continuous surface connection” to any (a)(2) impoundment or “relatively permanent” (a)(3)(i) tributary; or
(iii)significantly affecting the chemical, physical, or biological integrity of any core (a)(1) waterbody and “adjacent” to any (a)(2) impoundments or (a)(3) tributaries
(a)(5)Additionalintrastate lakes and ponds, streams, or wetlands” where such local waters are either:
(i)relatively permanent … with a continuous surface connection” to any core (a)(1) waterbody or any “relatively permanent” (a)(3)(i) tributary; or
(ii)significantly affecting the chemical, physical, or biological integrity of any core (a)(1) waterbody

The Biden administration describes its new WOTUS definition as putting back into place the regulatory scheme in effect before the Obama and Trump administrations took turns revising this term. But, by expressly including “significant nexus” triggers, the new rule more closely resembles the Obama administration’s broad 2015 Clean Water Rule than the Trump administration’s more narrow 2020 Navigable Waters Protection Rule (NWPR). The new rule goes further by adding new criteria for determining when a water feature trips this trigger because it has a “material influence on the chemical, physical, or biological integrity of [TNW, territorial seas, or interstate waters],” either “alone or in combination with similarly situated waters in the region.” The Biden administration claims that the rule’s new terms and updated exceptions for ditches, construction site depressions, wastewater treatment ponds/lagoons, prior converted croplands, artificial ponds/irrigation areas, and similar features are supported by its extensive public outreach to agricultural, tribal, state, and other stakeholders. Countering longstanding criticisms that “significant nexus” considerations unduly burden farming, infrastructure, and other projects with complex and expensive study requirements, the Agencies also point to past guidance and additional materials now available to facilitate predictable WOTUS determinations.

The Biden administration may be positioning its Agencies to make future “Rule 2” WOTUS definition changes if the U.S. Supreme Court invalidates or cuts back the “significant nexus” trigger in a pending appeal brought by the Sackett family against EPA. In that case, EPA issued an order and a jurisdictional determination that applied the significant nexus test to prohibit further filling and home construction activities on the Sackett’s “soggy” property located 300 feet from Priest Lake, a TNW in Idaho. The wetlands on their 0.63 acre lot drain into the lake beneath the ground surface but, thanks to intervening roads and residences, have no surface connection to Priest Lake or any other TNW. The lot’s wetlands are part of a larger wetland resource that has been found to impact Priest Lake. The Ninth Circuit’s 2021 decision in Sackett affirmed summary judgment in favor of EPA based on the “significant nexus” test, rejecting the Sackett’s argument that Justice Scalia’s plurality opinion should control. The present appeal to the Supreme Court has been briefed and argued; a decision is expected later this year.

The Biden administration has also lobbed its new WOTUS definition into the Court’s deliberations on the Sackett case. In a December 30, 2022 letter, the Office of the Solicitor General provided a link to the now “final rule” and pointed to the Agencies’ preamble comments describing which “adjacent wetlands” are regulated as WOTUS. EPA’s announcement issued on the same day seems to speak to both the Court and the public by describing the new rule as “durable” and “grounded in the authority provided by Congress [and reflecting] existing Supreme Court decisions, the latest science, and the agencies’ technical expertise.”

For now, the WOTUS ball is back in the hands of the Supreme Court. But, by forcing out its “durable” Phase 1 rule and reserving a place for potential Phase 2 rulemaking, the Biden administration is sending the Court and interested stakeholders a message that its Agencies are prepared to keep hitting back any narrow CWA interpretations sent their way in this game of WOTUS ping-pong, now entering into its sixth decade.

(*) For further discussion on the revised WOTUS rule and Sackett case, see the longer client alert. Attorney Melvin’s additional articles and presentations on water and wastewater topics appear in Environmental Law+ blog and other Robinson + Cole publications.

For air emission sources in New Haven County, Middlesex County, and Shelton, Connecticut, the regulatory landscape will change on November 7, 2022. 

Per a regulation published on October 7, 2022, the EPA is reclassifying the extent to which air quality in these parts of the state has failed to attain a certain federal air quality standard adopted in 2008 for ground-level ozone (aka smog).  Effective November 7, 2022, these two counties and this one town, currently classified as in “serious” nonattainment, will now be reclassified as in “severe” nonattainment.  The reclassification (aka “bump-up”) will immediately change the regulatory landscape — and potentially, applicable regulatory requirements — for facilities in those counties that emit or have the potential to emit volatile organic compounds (VOC) and nitrogen oxides (NOx), each of which is an ozone precursor. 

VOC are found in a wide variety of operations, including coating, solvent degreasing, and printing.  NOx is typically a byproduct of burning fuel or other combustion.

What does this mean for a VOC or NOx emission source in New Haven County, Middlesex County, and Shelton? 

Reclassification to “severe” will cut in half the emissions-based threshold for certain categories – “major stationary source” and “major modification to a major stationary source” – that trigger regulatory requirements.  The threshold for each under the current “serious” classification is 50 tons per year of actual or potential emissions (more on potential emissions below) of VOC, or of NOx.  As of November 7, 2022, the threshold under the “severe” classification will be 25 tons per year. 

As a result, a VOC or NOx emission source in the affected areas with actual or potential emissions between 25 and 50 tons per year or more may become subject, in some cases immediately, to several significant regulatory programs.  These programs include:

  • More stringent pre-construction permitting requirements for a proposed new source or modification under the Nonattainment New Source Review program.
  • A requirement for an existing source to apply for and obtain an operating permit (aka Title V permit), which aggregates all applicable requirements into one “umbrella” permit along with requirements for detailed annual compliance certifications and other periodic reports.
  • Expanded or more stringent requirements (known as Reasonably Available Control Technologies (RACT)) for VOC and/or NOx emissions from an existing source.

What to know about “potential emissions”

The term “potential emissions” is generally defined as the emissions that would result from continuous operation at maximum rated capacity, subject only to inherent physical constraints and any “practicably enforceable” limits.  For certain types of operations (e.g., paint guns that see limited use), potential emissions may far exceed actual emissions.  Overlooking or improperly calculating the potential emissions of a source has long been one of the most common pitfalls in the air regulatory world.  This will likely continue to be true in dealing with the “bump-up.”

Take-Away

The owner or operator of a VOC or NOx emission source in New Haven or Middlesex Counties or in Shelton would be well-advised to assess whether and how the impending bump-up might impact the regulatory status and requirements for the source, and to consider potential mitigation or avoidance strategies.  Such strategies could include securing practicably enforceable limits (or additional such limits) on potential emissions.  In some cases, prompt action may be necessary to avoid non-compliance with newly-applicable requirements. 

The final bump-up rule can be viewed here.  Also helpful may be an FAQ sheet developed by the Connecticut Department of Energy and Environmental Protection.

The Standells may “love that dirty water” according to their 1966 hit song, but the Environmental Protection Agency’s (EPA) New England region is hoping to reduce stormwater pollution running off industrial, commercial and institutional properties “down by the banks of the river Charles” and throughout three Boston area watersheds. After prodding from the Conservation Law Foundation, EPA Region 1 is taking steps to expand the agency’s stormwater permitting program to apply to operators of those designated parcels in the Charles River, Neponset River, and Mystic River watersheds if they have one acre or more of impervious surfaces preventing water from infiltrating into the ground. These surfaces can include not only buildings and pavement, but also compacted gravel and artificial turf.

On September 14, 2022, EPA Region I announced its plans to propose one or more general permits as part of the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System (NPDES). The agency described its initiative as the first exercise of its CWA “residual designation authority … on such a broad scale to address watersheds in a major urban area.” The EPA’s related determination was supported by an extensive history of water quality standard violations and significant pollutant contributions from these stormwaters, the Massachusetts Department of Environmental Protection’s prior listing of “impaired waters” in these watersheds under CWA § 303(d), and allocations made in related Total Maximum Daily Loads (TMDLs) for nitrogen, phosphorus, bacteria, and other stormwater pollutants. In addition to documenting these grounds for using its CWA “residual designation authority,” the agency pointed to other factors warranting prompt action, including the extent of stormwater pollution flowing into “environmental justice” communities and the rise of stormwater-related climate change impacts such as year-round algae blooms.

The EPA stated its NPDES permit proposal “will likely rely on well-proven and easily implemented ’Best Management Practices’ (BMPs) – including leaf litter pickup, parking lot sweeping, installing rain gardens or other infiltration practices, planting trees, reducing pavement or utilizing pervious pavement.” Previously issued NPDES general permits have also required stormwater sampling and implementation of control measures when applicable standards are exceeded. The expected permit would not apply to operators already authorized to discharge stormwater under an EPA general or individual permit. For example, storm sewer systems operated in these watersheds by the City of Boston and other municipalities are not designated by the agency for the new stormwater requirements.

The EPA has not released its schedule for rolling out this new stormwater program, stating only that it plans to post its general permit proposal on its website and open up a public comment period for both the permit proposal and the EPA’s designation under the Clean Water Act. To follow the EPA’s “residual designation authority” for expanded stormwater permitting and other Clean Water Act developments, see Robinson+Cole’s related articles.

Last week, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of a Proposed Rule to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  This marks the next step in a trend of increasing regulation of per- and polyfluoroalkyl substances (PFAS), a class of chemical substances to which PFOA, PFOS, and a number of other substances belong.  PFAS have been used for a variety of applications, including firefighting foams, stain guards, and non-stick coatings, and are now widely found in the environment.

Under CERCLA, EPA has the authority to require potentially responsible parties (PRPs) to remediate sites contaminated by hazardous substances, and to recover costs from such PRPs for EPA-led cleanups.  These provisions do not yet apply to PFAS because they are not CERCLA hazardous substances, but if the Proposed Rule is finalized, these familiar provisions would apply to PFOA and PFOS.  Similarly, the hazardous substance designation would allow private parties that incur costs to investigate and remediate PFOA and PFOS to use CERCLA’s cost recovery and contribution provisions to pursue other PRPs for recovery of associated costs. 

The Proposed Rule, if finalized, could have significant impacts on Superfund sites that are presently undergoing remediation or even where remediation has already been completed.  For sites being remediated now, the EPA-approved remedial plans would have been calibrated to address other hazardous substances (say, solvents) already designated under CERCLA.  The addition of PFOA and PFOS as hazardous substances may require a change in plans and/or additional work to address PFOA and PFOS as well as the original drivers.  For sites that have already been closed without investigation and remediation of PFOA and PFOS, designation of such substances as hazardous under CERCLA could cause those sites to be reopened and additional remedial efforts to be required.

EPA’s proposed CERCLA hazardous substance rule follows a significant reduction earlier this summer in EPA’s non-binding health advisory levels for PFOA and PFOS in drinking water.  In 2016, EPA had set a non-binding health advisory level of 70 parts per trillion (ppt) for both PFOA and PFOS.  In June of this year, EPA issued revised advisory levels of 0.004 ppt for PFOA and 0.20 ppt for PFOS, as well as new health advisory levels for additional PFAS GexX (10 ppt) and PFBS (2000 ppt).  The health advisory levels continue to be non-binding, but EPA has signaled its intention to promulgate a final rule setting a maximum contaminant level for PFOA and PFOS, enforceable under the Safe Drinking Water Act, by the end of 2023.  The proposed rule is expected later this year. 

Following publication in the Federal Register, EPA will accept public comment on the Proposed Rule for 60 days.  The precise text and timing of the final rule is not yet clear and may be impacted by the volume and tenor of public comments.  It also remains to be seen whether EPA will propose to designate other PFAS as CERCLA hazardous substances, and if so, which ones.

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