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EPA/OLEM RIN: 2050-AH09 Publication ID: Fall 2019 
Title: Designating PFOA and PFOS as CERCLA Hazardous Substances 
Abstract:

On February 14, 2019, EPA issued a PFAS Action Plan, which responds to extensive public interest and input the agency has received during the past year and represents the first time EPA has built a multi media, multi program, national communication and research plan to address an emerging environmental challenge like PFAS. EPA's Action Plan identifies both short-term solutions for addressing these chemicals and long-term strategies that will help provide the tools and technologies states, tribes, and local communities need to provide clean and safe drinking water to their residents and to address PFAS at the source-even before it gets into the water. This rulemaking effort, to designate PFOA and PFOS as CERCLA hazardous substances, is one of the actions mentioned in the PFAS Action Plan.

Designating PFOA and PFOS as CERCLA hazardous substances will require reporting of releases of PFOA and PFOS that meet or exceed the reportable quantity assigned to these substances. This will enable Federal, State, Tribal and local authorities to collect information regarding the location and extent of releases.

 
Agency: Environmental Protection Agency(EPA)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
EO 13771 Designation: Regulatory 
CFR Citation: 40 CFR 302   
Legal Authority: 42 U.S.C. 9602   
Legal Deadline:  None

Statement of Need:

PFOA and PFOS compounds in the environment are a continuing concern for the Federal Government, States, Tribes, and local communities. The EPA is leading efforts with our Federal, State, Tribal, and community partners to better characterize risks related to the presence of PFAS in the environment, including using CERCLA and other authorities, as appropriate, to investigate sites when needed.

Summary of the Legal Basis:

CERCLA section 102(a) allows the Administrator to promulgate regulations designating as hazardous substances those substances that, when released into the environment, may present a substantial danger to public health or welfare or the environment.

Alternatives:

The EPA examined a variety of available statutory authorities to designate PFOA and PFOS as hazardous substances, including CERCLA, the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Clean Water Act (CWA), and the Clean Air Act (CAA).

Anticipated Costs and Benefits:

Direct costs associated with this action are limited to reporting under CERCLA to the National Response Center (NRC) and under the Emergency Planning and Community Right to Know Act (EPCRA) to the State and local authorities a release of PFOA or PFOS that meets or exceeds the reportable quantity of 1 pound in a 24-hour period. Due to uncertainty surrounding the number of annual releases, EPA is estimating both lower bound and upper bound cost estimate scenarios. Reporting does not trigger an obligation of EPA (or anyone else) to conduct a response action. Response actions are discretionary and would be the result of site-specific decisions made after a release or threatened release of a hazardous substance. Because response actions (and any associated costs or benefits) are contingent upon a series of separate discretionary and sequential actions, they do not arise directly from the act of designating PFOA and PFOS as hazardous substances. The Regulatory Impact Analysis for this action will contain a qualitative discussion of the costs and benefits.

Risks:

The direct impacts of this proposed rule are limited to reporting releases of hazardous substances. Identifying contaminated sites could potentially result in decisions to investigate or respond to a release, or both which could reduce harm or risk to human health, welfare, and the environment. Reporting does not trigger an obligation of EPA (or anyone else) to conduct a response action. Response actions are discretionary and would be the result of site-specific decisions made after a release or threatened release of a hazardous substance. Because response actions (and any associated costs or benefits) are contingent upon a series of separate discretionary and sequential actions, they do not arise directly from the act of designating PFOA and PFOS as hazardous substances.

Timetable:
Action Date FR Cite
NPRM  11/00/2019 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal, Local, State, Tribal 
Small Entities Affected: No  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: No 
Agency Contact:
Michelle Schutz
Environmental Protection Agency
Office of Water
1200 Pennsylvania Avenue NW,
Washington, DC 20460
Phone:703 603-8708
Email: schutz.michelle@epa.gov

Terry Jeng
Environmental Protection Agency
Office of Land and Emergency Management
5204P, 1200 Pennsylvania Avenue NW,
Washington, DC 20460
Phone:703 603-8852
Email: jeng.terry@epa.gov