In October, Pace® conducted a webinar on the final rule designating PFAS as Hazardous Substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or what most of us commonly think of as “Superfund.”
Watch On-Demand: PFAS CERCLA Final Rule
Despite the rule having been final for seven months, we had a great turnout with a lot of questions asked both at the end of the session and offline. We thought we’d share a bit of the Q&A on PFAS.com. Here’s one from the webinar that we often get asked by our customers:
Q: Does a Release Always Lead to a Superfund Designation?
The short answer to this is “no,” but let’s unpack that a bit.
First, the term "release" generally refers to any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of hazardous substances into the environment, including soil, air, and water. This includes releases on private lands. So, for example, if an industrial facility releases wastewater containing CERCLA hazardous substances into a private retaining pond, this would be considered a release even though it is private property and not considered part of the Waters of the U.S. (WOTUS).
In addition, the final rule covers just two PFAS: PFOA and PFOS. As I mentioned in the webinar, it also covers their salts and isomers, but any analysis of PFOA and PFOS will catch these related compounds. Furthermore, only releases of one pound or more during a 24-hour period need to be reported. Additionally, releases of PFOA and PFOS are considered separately. That is, a release of 0.5 pounds of PFAS and 0.5 pounds of PFOA within a 24-hour period would not be considered reportable.
Now let’s turn to the second part of the question and clear up a few things in relation to the term “Superfund” and what it means to be designated a Superfund site.
What is a Superfund Designation?
CERCLA gives the EPA the authority to clean up new releases of PFAS contamination as well as existing contaminated sites and hold Potentially Responsible Parties (PRP) accountable for the costs. This program has come to be known as Superfund, but that can be a bit misleading. CERCLA was initially aimed at addressing abandoned hazardous waste sites, and Superfund referred to the trust fund created to provide for the cleanup when no responsible party could be identified. Most people still refer to these sites as Superfund sites even if a Potentially Responsible Party (PRP) is being held liable for cleanup and the fund is not being used by EPA to pay for its clean-up.
How Do Sites get Placed on the National Priorities List (NPL)?
To answer the original question, we need to look at how sites get designated as a Superfund site. For the purposes of this discussion, let’s focus on sites where a recent release has been reported. There are multiple steps involved, including:
1/ Preliminary Assessment – Initial information about a site is collected and reviewed to determine if further investigation is warranted.
2/ Site Inspection – More detailed data is collected to ascertain the nature and extent of the contamination. This phase includes sampling and analysis.
3/ Hazard Ranking – This scoring system is used by the EPA to evaluate potential risks to public health and the environment and to prioritize sites for further action. Sites that score “high enough” are proposed for the National Priorities List (NPL).
4/ Public Comment Period – Prior to placement on the list, there is a public comments period.
5/ Final Determination – After the public comment period closes, the EPA will make a final determination on adding the site to the NPL.
The Bottom Line
So, as we said at the beginning, reporting a release does not automatically translate into a Superfund designation. All potential sites are reviewed individually by EPA, and finding your property on the NPL is largely dependent on the EPA’s assessment of risk to the public and the environment. The greater the risk, the more likely your property is to be designated a Superfund site. You can get more information about the Hazard Ranking System (HRS) on the EPA’s website.
As always, if you have a question, you’re welcome to reach out to us directly. We’ll also be answering more questions from our latest webinar in future posts, so stay tuned!
