EPA Publishes Final Rule on PFAS and PFOS as CERCLA Hazardous Substances

The EPA published the final rule to designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances. CERCLA, which stands for the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund, enables the EPA to take action for identifying and addressing contamination, under a polluter pays model.

Municipal solid waste landfills accept waste containing PFAS and PFOA, substances that are present in many everyday household items and packaging. It is not practical for landfills or other waste treatment facilities to separate out the municipal wastes containing PFAS from general waste. As a result, landfills are and were passive receivers of these waste streams containing PFAS. The final EPA designation is a concern for landfills and other solid waste facilities.

There are not currently standards for landfill leachate in permits or Federal regulations on PFAS in leachate. Many SWANA members are proactively researching and piloting solutions for PFAS detection, destruction, and disposal. Our industry is poised to be part of the solution and needs protection from potential lawsuits related to CERCLA in order to focus on science-based solutions.

SWANA appreciates that the PFAS Enforcement Discretion policy memo states that EPA does not intend to pursue action against “publicly owned/operated municipal solid waste landfills.” However, this does not protect privately owned landfills that accept municipal solid waste which still causes concerns for potential liability, cost burdens on ratepayers, and the risk of certain waste streams having nowhere to go.

As stated in the Senate EPW hearing on March 20, EPA’s decision not to pursue a passive receiver does not protect the passive receiver from a lawsuit from other potentially liable parties. The lack of a narrow exemption will create a risk of placing the cost burden onto ratepayers and the public. In addition, landfills may be compelled to stop accepting waste with elevated levels of PFAS compounds such as biosolids and spent water filtration systems, resulting in no place for many waste streams to go.

It is important that waste acceptance sites receive a narrowly tailored exemption from CERCLA liability, and SWANA will continue to advocate for this outcome.