Author: Lindsay Brown

For the past several months, the Senate Environment and Public Works (“EPW”) Committee has been reviewing recommendations on how to overhaul the Superfund process as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) to expedite the early stages of the Superfund process.

 During an April 9, 2025 Committee hearing, senators from both parties expressed their support for the effort, although each party differed in their approach to streamlining the process.  Republican lawmakers, led by chairman Shelley Moore Capito (R-WV), focused on the pre-clean up procedural requirements imposed by CERCLA.  Capito criticized that CERCLA “prioritizes process over results” and that the EPA’s “entangled web of bureaucracy, work groups, task forces and committees . . . too often slow progress.”  In contrast, ranking member Sheldon Whitehouse (D-RI) said that “speed must not come at the cost of efficacy” and argued that the Trump Administration’s cuts to the EPA’s funding will lead to further delays in the process.

While still being developed and considered, several changes to CERCLA have been proposed.  One proposal called for site cleanups to start before a site is even declared a Superfund site or added to the National Priorities List.  This approach would allow the EPA to start remediating a site while simultaneously working to identify all potentially responsible parties.  Another proposal would allow EPA to proceed with a “presumptive remedy” in cases where the selected remedy is straightforward and widely-accepted, such as for sites polluted by heavy metals. 

Other concerns included whether per- and polyfluoroalkyl substances (PFAS) pollution will be part of any reform efforts, particularly in the wake of the Biden Administration designating perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances.  Some commentators have argued that inclusion of PFAS as a hazardous substance threaten bipartisan support for Superfund reform, as others have argued that it could throw the entire Superfund process into disarray.  One proposal to alleviate these concerns is to change CERCLA’s liability provisions to exempt “passive receivers” of PFAS, which some have criticized as potentially leading to unintended consequences concerning other types of hazardous substances.

While the EPW Committee seems to be open to clearing some of the administrative red tape and speeding up the cleanup process, there does not seem to be any consensus for how to achieve that goal, and it will be interesting to see where the Committee ultimately lands.  We will continue monitoring any Committee work on this topic and will update this blog with any new and interesting developments. 

Reposting an Alert circulated last week on the EPA’s proposed rule:

The proposed rule “clarifies” that the PFAS chemical will be automatically added to the TRI list of chemicals as of January 1 regardless of whether the EPA has published a rule updating the TRI list.

On January 17, 2025, the U.S. Environmental Protection Agency (EPA) proposed a rule clarifying that the PFAS automatically added to the Toxics Release Inventory (TRI) list by the National Defense Authorization Act for Fiscal Year 2020 (NDAA) are effectively TRI-listed chemicals (i.e., “toxic chemicals”) as of January 1 of the applicable year. This means that all TRI requirements, including the supplier notification requirements, apply to these chemicals at that time, regardless of whether the EPA has issued a final rule adding the chemical(s) to the TRI list. This clarification, if approved, emphasizes the need for suppliers subject to the TRI supplier notification requirements to pay close (or even closer) attention to the triggers identified in the NDAA for adding PFAS to the TRI.

The NDAA automatically adds certain PFAS to the TRI list beginning January 1 of the year following the occurrence of certain EPA triggering activities listed in the NDAA. Since the enactment of the NDAA, each year the EPA has issued a final rule officially “adding” the PFAS to the TRI list. That final rule, however, often comes days, weeks or even months after January 1, creating some confusion in the regulated community as to when the chemicals are officially listed and subject to the TRI requirements. The proposed rule “clarifies” that the PFAS chemical will be automatically added to the TRI list of chemicals as of January 1 regardless of whether the EPA has published a rule updating the TRI list.

In terms of TRI chemical reporting, the proposed clarification changes little, as TRI reporting for any newly added chemical would not be due to the EPA until July 1 of the following year. Hence facilities will have time to assess the reporting impact of any PFAS that may have been added to the TRI, even if the EPA triggering activity occurred late in the year.

But for suppliers required to provide supplier notifications to their customers informing them of the presence of any toxic chemicals or mixtures in their product, the proposed rule highlights the importance of closely tracking any triggering activities by the EPA. If an EPA triggering activity occurs on December 31, the PFAS chemical at issue will be added to the TRI list the very next day,and suppliers will be required to ensure all shipments of products containing the newly added PFAS have an updated notification providing the required information about the chemical. When triggering events occur late in the year, suppliers may have little to no advance notice of the required change in their supplier notifications—unless they have been closely monitoring the EPA’s triggering activities.

Thus, suppliers are urged to diligently monitor the EPA’s trigging activities, now more than ever, so they are not caught off guard by late-year additions to the TRI list. The EPA triggering activities include:

1. Finalizing a toxicity value for the PFAS or class of PFAS.
2. Making a determination that a use of the PFAS or class of PFAS is a significant new use under TSCA Section 5(a)(2).
3. Adding the PFAS or class of PFAS to a list of substances covered by an existing significant new use rule.
4. Adding the PFAS or class of PFAS to the list of active chemical substances on the TSCA Inventory. See NDAA 2020 Section 7321(c)(1)(A).

Customers receiving supplier notifications should always pay careful attention to revisions in those notifications, which are either included in or attached to the product safety data sheets for those products. As we advised in a prior Alert, PFAS added to the TRI have been designated as chemicals of special concern. This means they have lower reporting thresholds and the de minimis exemption does not apply when determining reporting thresholds or notification requirements. This will result in more PFAS being identified in supplier notifications potentially triggering new or additional reporting requirements for the receiving facilities when their annual TRI reporting is due the following July.

Comments on the proposed rule must be received on or before February 18, 2025.

For More Information

If you have any questions about this Alert, please contact Lindsay Ann Brown, Lori A. Mills, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.

The U.S. Environmental Protection Agency announced that it is amending the Toxic Substances Control Act regulation requiring manufacturers (including importers) to report certain data on perfluoroalkyl and polyfluoroalkyl substances (PFAS). Under the amendment, the data submission period will now begin July 11, 2025, instead of November 12, 2024. For any reporter who is reporting exclusively pursuant to § 705.18(a) (article importers), and is also considered a small manufacturer under the definition at 40 CFR 704.3, the submission period shall end July 11, 2026.  For all other reporters, the submission period shall end January 11, 2026.  

A prepublication copy of the rule amendment can be found here.

On May 8, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). The final rule, which EPA announced on April 17, 2024, and which will take effect July 8, 2024, is the first time EPA has ever invoked CERCLA Section 102 to designate a new substance as a hazardous substance via regulation. The publication of the rule starts the clock for any challenges to the rule, giving industry and other parties 90 days from publication to file any applicable legal challenges. Publication also triggers a congressional review period under the Congressional Review Act, giving Congress 60 “legislative days” to review the rule. EPA’s decision to release the rule now is noteworthy in that the review period likely will expire before the general election in November and potential changes in control of the House, Senate and White House.

The full Alert is available here.

On January 31, 2024, U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan signed two proposed rules under the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984. The first, “Listing of Specific PFAS as Hazardous Constituents,” proposes to add nine per- and polyfluoroalkyl substances (PFAS) to the list of RCRA hazardous constituents. If listed, EPA would routinely consider those nine PFAS in assessments and, where necessary, in any corrective action at any facility that treats, stores or disposes of hazardous waste (referred to as TSDFs) or that includes such a facility as part of its manufacturing operations. Further, EPA’s listing of these nine PFAS as hazardous constituents brings these substances a step closer to being listed as hazardous waste under the RCRA and as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund.

The second proposed rule, “Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units,” aims to “clarify” that TSDFs are required to conduct corrective action to address releases of “hazardous constituents” and any substance meeting the statutory definition of “hazardous waste,” see 42 U.S.C. § 6903(5), regardless of whether that substance has been specifically listed as a hazardous waste in the regulations. While this rule does not address PFAS directly, if adopted, it would bolster EPA’s claim of authority to use RCRA corrective action at permitted facilities to address not only listed hazardous waste and constituents—including the nine PFAS identified in the first proposed rule—but also emerging contaminants, such as unlisted PFAS, if it can be shown that they meet the statutory definition of “hazardous waste.” In addition to increasing the risk of EPA enforcement, adoption of these rules (and potential further listing of these substances as hazardous waste) increases the risk of citizen suits against TSDFs or others alleging permit or regulatory violations or alleging that an imminent and substantial endangerment to health or the environment exists.

Click here to view the full ALERT on the Duane Morris website.