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EPA/OLEM RIN: 2050-AH09 Publication ID: Fall 2020 
Title: Designating PFOA and PFOS as CERCLA Hazardous Substances 
Abstract: On February 14, 2019, EPA issued a PFAS Action Plan, which responded to extensive public interest and input the agency had received and represented the first time EPA has built a multi-media, multi-program, national communication and research plan to address an emerging environmental challenge like PFAS. This Plan was updated on February 26, 2020. EPA's Action Plan identified both short-term solutions for addressing these chemicals and long-term strategies that may provide the tools and technologies states, tribes, and local communities requested to provide clean and safe drinking water to their residents and to address PFAS at the source before it gets into the water. This rulemaking effort, to designate PFOA and PFOS as CERCLA hazardous substances, was one of several actions mentioned in the PFAS Action Plan. Designating PFOA and PFOS as CERCLA hazardous substances would require reporting of releases of PFOA and PFOS that meet or exceed the reportable quantity assigned to these substances. This may 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:
Action Source Description Date
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 determined that CERCLA section 102(a) to be the most viable alternative for this effort.

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 one pound in a 24-hour period. Due to uncertainty surrounding the number of annual releases, the EPA is estimating both lower bound and upper bound cost estimate scenarios. Reporting does not trigger an obligation of the 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 and/or respond to a release, which could reduce harm or risk to human health, welfare, and the environment. Reporting does not trigger an obligation of the 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  12/00/2020 
Final Rule  To Be Determined 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal, Local, State, Tribal 
Small Entities Affected: No  Federalism: No 
Included in the Regulatory Plan: Yes 
Sectors Affected: 314110 Carpet and Rug Mills; 322121 Paper (except Newsprint) Mills; 322130 Paperboard Mills; 324110 Petroleum Refineries; 325510 Paint and Coating Manufacturing; 325992 Photographic Film, Paper, Plate, and Chemical Manufacturing; 325998 All Other Miscellaneous Chemical Product and Preparation Manufacturing; 332813 Electroplating, Plating, Polishing, Anodizing, and Coloring; 424710 Petroleum Bulk Stations and Terminals; 488119 Other Airport Operations; 562212 Solid Waste Landfill; 811192 Car Washes; 922160 Fire Protection 
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