Earlier this year, the Pennsylvania Department of Environmental Protection (“PADEP”) published for public comment its proposed update to the Chapter 250 regulations under the “Land Recycling and Environmental Remediation Standards Act” – frequently referred to as Act 2. As part of its regulatory update, PADEP proposed to include remediation standards for three Per- and polyfluoroalkyl (“PFAS”) compounds – Perfluorooctanoic acid (“PFOA”), Perfluorooctanesulfonic acid (“PFOS”), Perfluorobutanesulfonic acid (“PFBS”). Once finalized, these compounds will be “regulated substances” under Act 2, and can be addressed through the Act 2 remediation process.

In our post earlier this year on the “Evolution of PFAS in Pennsylvania,” we discussed Pennsylvania’s 2019 “PFAS Action Team Initial Report,” which among other items, noted that “[i]f certain PFAS become designated as hazardous substances under the Hazardous Sites Cleanup Act, DEP will execute its authority to enforce liability on responsible parties.” Under the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”), PADEP has authority to investigate and address sites that are potentially impacted with “contaminants” such as PFAS, though a party is generally not liable as a “responsible person” under HSCA for a release of a substance until it is designated as a “hazardous substance.” 35 P.S. § 6020.103 and 35 P.S. § 6020.501.

What is the difference between an Act 2 “regulated substance” and a HSCA “hazardous substance”?

Act 2 is designed to allow parties to address releases of “regulated substances,” which are defined to include “hazardous substances” and “contaminants” regulated under HSCA and substances covered under other Pennsylvania environmental statutes such as the Clean Streams Law and the Solid Waste Management Act. Relative to HSCA, Act 2 is generally considered a voluntary program through which a person can remediate a site.

Comparatively, HSCA defines a “hazardous substance” as an element or compound designated as a hazardous waste under the Solid Waste Management Act, defined or designated as a hazardous substance under the federal Superfund Act, contaminated with a hazardous substance to the degree that a release poses a threat to the environment, or listed in regulations promulgated by the Environmental Quality Board following a determination that the substance is substantially harmful to public health and safety or the environment.

Therefore, as to PFOA, PFOS, or any other PFAS compound, those compounds likely won’t be “hazardous substances” under HSCA until PADEP designates them as a “hazardous waste” or either EPA or PADEP officially designate them as “hazardous substances” under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or HSCA.