On July 8, 2024, EPA’s designation of PFOA and PFOS as hazardous substances under CERCLA became official. Following the announcement of the final rule in April 2024, it was published in the federal register, and after a 60-day notice period, is now effective. The federal government designated these two PFAS based on evidence from toxicological and epidemiological studies, determining that they pose a real threat to human health and the environment.

he notification of the final rule can be found here. The SGS PFAS team wanted to provide you with more insight into what these rules mean and let you know how we can help you stay on top of this important regulation.

What are the impacts?

The impacts of this new rule are significant, affecting numerous industries and organizations and incurring costs for addressing contaminated sites. The designation within CERCLA, or Superfund, provides a mechanism to recover cleanup costs from polluters..However, some of the affected industries have argued that they are not the source of the PFAS contamination but are instead “passive receivers”. This article from Foley and Lardner LLP provides some explanation on this topic among other questions that are still of concern for many.

Who is affected?

Any entity that releases more than the reportable quantity of PFOA or PFOS (i.e., 1 pound) into the environment within a 24-hour period must notify federal, state, local and/or tribal authorities, as applicable. As written, this rule applies to any company or organization, regardless of where the PFAS source originated from, including federal entities which must provide notice about storage, release, or disposal of PFOA or PFOS on-site when transferring or selling the property. Much of the concern when this rule was first proposed came from industries which receive significant PFAS loads, such as public-owned treatment works, landfills, airports, fire stations, and farmers that did not create the contamination and whether they would be subject to the new regulation.

What is the PFAS Enforcement Discretion letter?

Along with the announcement of the rule, an enforcement discretion letter was issued that provided direction on where the EPA should focus its attention when enforcing the new regulation. These “passive receivers” are among the entities which the EPA has said should not be the focus of regulators. However, there is still general concern amongst these industries and their affiliate trade organization that they would still be subject to litigation since they were not exempted in the final CERCLA rule. One lawsuit that has already been amended following the rule’s finalization is the State of New Mexico seeking damages from the U.S. DoD for PFAS contamination at military installations around the state. As stated in their press release, “The filing makes New Mexico the first state to take advantage of the EPA rule.”

Are there other consequences to the rule?

When conducting a Phase I Environmental Site Assessment (ESA), one consideration is a Recognized Environmental Condition (REC) to determine if there is a potential environmental impairment on a property, which includes hazardous substances. With this new designation for PFOA and PFOS, this means that PFAS is now a concern for property transaction due diligence and may now trigger a Phase II ESA, which includes sampling and testing to determine the presence or absence of contamination.

What can you do to prepare?

Understanding what PFAS testing methods apply to various media and when to use them can save time and money when you need to sample your site or your client’s. Whether it be drinking water, wastewater, groundwater, surface water, soil, sediment, fauna, biota, or any other number of complex media, SGS has established testing methods and a twenty-year history at the forefront of PFAS analytical science. One of our experts will guide you through the steps needed to obtain samples and send them for testing at one of our six and ever-expanding list of PFAS laboratories in North America.

Contact Us

To find out how we can best help you with your PFAS analysis, call +1 800 329 0204 or email PFAS.Expert@sgs.com. We look forward to hearing from you soon.

Contact our team in a number of different ways:

• Call +1 800 329 0204
• Email ehs.clientcare@sgs.com
• Visit www.sgs-ehsusa.com