In two of our previous posts, we discussed the United States Environmental Protection Agency’s (EPA) “Hazardous Substance” Designation Process and the Implications of a Designation on Responsible Parties. Here, in this post, we discuss what a designation of PFOA and PFOS might mean for ongoing investigations and remediations lead by EPA.

Current EPA Interim Recommendations for CERCLA and RCRA Sites

EPA’s current interim policy, published December 19, 2019, provides guidance for a “risk-based” approach at sites where PFOA and PFOS groundwater contamination is being evaluated and addressed under federal cleanup programs, such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and corrective action under the Resource Conservation and Recovery Act (RCRA). EPA states the following for sites with PFOA and/or PFOS contamination of groundwater that is a current or potential source of drinking water:

  • Sites should be screened using a groundwater screening level of 40 parts per trillion (ppt);
  • Where there is no adequately protective state Maximum Contaminant Level (MCL) or applicable or relevant and appropriate requirement (ARAR), EPA recommends a “Preliminary Remediation Goal” for groundwater that is a current or potential source of drinking water of 70 ppt;
  • Where groundwater is currently being used for drinking water, EPA expects that parties address PFOA and PFOS levels that exceed 70 ppt.

EPA reiterates that its guidance is intended to be interim and would be revised upon the promulgation of a federal ARAR, such as a national drinking water standard for PFOA or PFOS.

Ongoing Investigations and Remediations

As EPA makes clear in its interim policy, efforts to investigate and address sites impacted by PFOA and PFOS are already underway. EPA also has the option of “re-opening” a site investigation to add PFOA or PFOS as a contaminant to be evaluated. Though EPA’s investigation and remedy selection authority is not limited to “hazardous substances,” EPA may use a formal designation of PFOA and PFOS as incentive to review its current Superfund site investigations and remedies.

EPA’s response and remedial actions are guided by regulations at 40 CFR Part 300 (the National Oil and Hazardous Substances Pollution Contingency Plan or more commonly the “NCP”). Generally, EPA develops a remedial investigation and feasibility study (RI/FS), remedy selection, and ultimately publishes a “record of decision” (ROD). Prior to adopting a ROD, EPA may alter its published remedy if new information becomes available that significantly changes its scope, performance, or cost of the remedy, per 40 CFR 300.430(f)(3)(ii).

EPA may also consider incorporating new “hazardous substances” during its required “5-Year Review” of each remedy under 40 CFR 300.430(f)(4). During this “review” process, EPA will review the implementation and performance of its selected remedy in order to assess whether it is protective of human health and the environment. In addition to the 5-Year Review process, EPA can change a remedy through publication of an “Explanation of Significant Difference” section 117(c) of CERCLA (42 U.S.C. § 9617(c)) and EPA may propose an amendment to the ROD if there are changes that fundamentally alter the basic features of the original remedy with respect to scope, performance or cost (40 CFR 300.435(c)(2)). EPA could pursue either of these approaches at sites where PFOA or PFOS are discovered, particularly if the PFOA and/or PFOS contamination affects a current or potential source of drinking water.