PFAS Possibilities: Using CERCLA to Address PFAS Sites

By Nora Baty*

It has been estimated that upwards of 19 million people at 610 sites in the United States use drinking water systems that contain PFAS (Per- and polyfluoroalkyl substances).[i] PFAS is a category of man-made chemicals that persist in the environment and can accumulate over time.[ii] These chemical compounds have been used in non-stick cookware, stain resistant fabrics, and firefighting foam.[iii] PFAS has been linked to several adverse health effects including increased risk of cancer, thyroid problems, auto-immune conditions, and adverse effects on child and infant development.[iv] As a result, PFAS has been classified as a “chemical of emerging concern” by the Environmental Protection Agency (EPA).[v]

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is a mechanism for EPA regulation of contaminated sites that pose a threat to public health and the environment.[vi] CERCLA was passed in 1980 in response to the Love Canal disaster and other hazardous waste sites.[vii]  The goal was to clean up hazardous waste sites and address the public health concerns arising out of the sites.[viii] CERCLA gives the EPA power to address sites containing areas contaminated by hazardous substances, pollutants, and/or contaminant releases.[ix] Those that are deemed hazardous are placed on an exhaustive list of all the chemicals deemed hazardous under CERCLA.[x] Sites are given a risk assessment by the EPA and scored using the Hazard Ranking System (HRS); a score of 28.5 or more places the site on the National Priority List (NPL) for long term responses and monitoring.[xi] The HRS score is “based on the likelihood that contaminants have been or will be released from the site, the physical and toxicological characteristics of the contaminants present at the site, and the human population or sensitive environments actually or potentially exposed to a release from the site.”[xii]

Since PFAS is not considered a hazardous substance under current EPA regulations, PFAS contamination sites are unlikely to be added to the NPL anytime soon. The EPA has begun some preliminary considerations of site-specific cleanup recommendations under CERCLA.[xiii] However, the EPA’s short-term actions on PFAS have thus far focused on identification, research, and possible treatment options for PFAS sites, not remedial actions.[xiv] All the while, communities affected by PFAS are in dire need of response activities or risk significant health effects. Exposure to PFAS mostly occurs through consumption of contaminated water or food and the effects and mechanisms of exposure are still the subject of further research.[xv]

 There is a less commonly researched or referenced Emergency Response and Removal (ERR) program run by the EPA under CERCLA. ERR’s goal is to address immediate threats to human health in the environment. ERR sites do not require that the contaminants in question be designated as hazardous substances, only that they pose an imminent threat to public health and the environment.[xvi]

The regulation of PFAS under CERCLA’s ERR is likely the most effective method for quickly addressing the immediate threats to groundwater and drinking water supplies posed by many PFAS contamination sites. By approaching PFAS sites under ERR instead of the longer term NPL designation impacted communities can quickly be helped.

NPL sites are eligible for long-term remedial investigation and remedial action (cleanup) financed under superfund. However, inclusion on the NPL does not by itself result in any further actions. Following NPL designation the cleanup process involves a remedial investigation and feasibility study, a proposal of remedy decisions for public comment with a final remedy decision issued by the EPA, remediation design and action, completion of physical cleanup activities and monitoring, and eventually NPL deletion and site reuse and redevelopment.[xvii]

Using ERR to address PFAS contamination would empower immediate cleanup activity of smaller sites that might not need or qualify for the longer term and more expensive monitoring and multi-phase cleanup efforts of NPL sites.

 But actual groundwater cleanup of ERR sites is rare due to the time and cost associated with groundwater cleanup, and most often sites with groundwater contamination are referred to  the superfund remedial program once the immediate threats have been addressed.[xviii] The ERR response to PFAS would likely be the installation of filters for homeowners and at the water treatment plant as needed. It could also include providing drinking water to the community.[xix] Because the ERR response for the groundwater cleanup is unlikely, for a “complete” cleanup of groundwater PFAS contamination sites will have to be listed on the NPL.

Nonetheless, for PFAS contamination sites without groundwater contamination, ERR may be an effective method of preventing further harm. For sites without groundwater contamination ERR may be sufficient to prevent future groundwater contamination and NPL designation may not be necessary for site cleanup. ERR may also be a more time sensitive solution for communities already affected by contaminated water supplies in need of immediate relief that cannot be provided by local agencies due to cost concerns, lack of manpower or ‘no stricter than’ laws requiring state environmental regulations to not exceed federal restrictions.

*Nora Baty is a Junior Editor on MJEAL. She can be reached via email at nbaty@umich.edu

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.


[i] E.A. Crunden, As EPA stalls, 43 States have Water Sites Contaminated with Toxic Chems., ThinkProgress, (Dec. 1, 2019), https://thinkprogress.org/water-toxic-chemicals-pfas-states-2f68b1c6b7f3/; Bill Walker, Mapping the PFAS Contamination Crisis: New Data Show 610 Sites in 43 States, Envtl. Working Grp. (May 6, 2019), https://www.ewg.org/news-and-analysis/2019/04/mapping-pfas-contamination-crisis-new-data-show-610-sites-43-states.

[ii] Nat’l Inst. of Envtl. Health and Scis, Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), Health and Educ. (Dec. 1, 2019), https://www.niehs.nih.gov/health/topics/agents/pfc/index.cfm.

[iii] Id.

[iv] Elsie M. Sunderland, Xindi C. Hu, Clifton Dassuncao, Andrea K. Tokranov, Charlotte C. Wagner, & Joseph G. Allen, A Review of the Pathways of Human Exposure to Poly- and Perfluoroalkyl Substances (PFASs) and Present Understanding of Health Effects, 29 Journal of Exposure Sci. & Envtl. Epidemiology 131-147 (2019).

[v] Envtl. Prot. Agency, Emerging Contaminants and Fed. Facility Contaminants of Concern, Cleanups at Fed. Facilities, (Dec. 1, 2019), https://www.epa.gov/fedfac/emerging-contaminants-and-federal-facility-contaminants-concern.

[vi] 42 U.S.C.A. § 9601.

[vii] Envtl. Prot. Agency, What is Superfund, Superfund, (Dec. 1, 2019), https://www.epa.gov/superfund/what-superfund.

[viii] Id.

[ix] 42 U.S.C.A. § Ch. 103 (West 2016)]; Exec. Order 12580.

[x] Envtl. Prot. Agency, EPA 550-B-19-003, Consolidated List of Chems. Subject to the Emergency Planning and Cmty. Right To-Know Act (EPCRA), Comprehensive Envtl. Response, Compensation and Liab. Act (CERCLA) and Section 112(r) of the Clean Air Act (2019).

[xi] Envtl. Prot. Agency, 9320.7-03FS, The Revised Hazard Ranking System: Background Info. (1990).

[xii] Envtl. Prot. Agency, EH-231-024/0294, The Hazard Ranking System (HRS) (1994).

[xiii] Envtl. Prot. Agency, EPA 823R18004, EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (2019).

[xiv] Id.

[xv] Nat’l Inst. of Envtl. Health and Scis., Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), Health and Educ. (Dec. 1, 2019), https://www.niehs.nih.gov/health/topics/agents/pfc/index.cfm.

[xvi] Robin Jenkins, Heather Klemick, Elizabeth Kopits, & Alex Marten, CERCLA’s Overlooked Cleanup Program: Emergency Response and Removal (Nat’l Ctr. for Envtl. Econ., Working Paper No. 11-04, 2011), https://www.epa.gov/sites/production/files/2014-12/documents/cerclas_overlooked_cleanup_program.pdf.

[xvii] Envtl. Prot. Agency, Superfund Cleanup Process, Superfund, (Dec. 1, 2019), https://www.epa.gov/superfund/superfund-cleanup-process.

[xviii] Robin Jenkins, Heather Klemick, Elizabeth Kopits, & Alex Marten, CERCLA’s Overlooked Cleanup Program: Emergency Response and Removal (Nat’l Ctr. for Envtl. Econ., Working Paper No. 11-04, 2011), https://www.epa.gov/sites/production/files/2014-12/documents/cerclas_overlooked_cleanup_program.pdf.

[xix] Envtl. Prot. Agency, How Superfund Addresses Groundwater Contamination, Superfund, (Dec. 1, 2019), https://www.epa.gov/superfund/how-superfund-addresses-groundwater-contamination.

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