As part of its “PFAS Strategic Roadmap,” EPA has stated that it intends to designate PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Responses, Compensation, and Liability Act (CERCLA). EPA took the first step in this process on January 10, 2022, when it submitted its proposed rule to the White House Office of Management and Budget. Per EPA’s Roadmap, this designation, once finalized, would “enhance the ability of federal, Tribal, state, and local authorities to obtain information regarding the location and extent of releases,” as well as seek cost recovery or contributions for costs incurred for a cleanup. EPA is referring to its authority under section 104(e) of CERCLA to request information from any person regarding a release of a hazardous substance or a pollutant or contaminant (often referred to as a “104(e) Letter”). 42 U.S.C. § 9604(e)(2).
Key to EPA’s 104(e) authority is its ability to request information related to both formally listed “hazardous substances” and “pollutants” and “contaminants.” EPA has already stated that it considers PFOA and PFOS to be CERCLA pollutants and contaminants. This means that, while EPA may more aggressively use its 104(e) authority to demand information once PFOA and PFOS are formally designated, per EPA, it already has the authority to do so. The Pennsylvania Department of Environmental Protection (PADEP) has similar authority under section 503 of the Hazardous Sites Cleanup Act (HSCA).
With that in mind, below are concepts to keep in mind if you receive an EPA 104(e) or PADEP 503 information request regarding PFOA or PFOS:
- Get the request in writing. Agencies may from time to time verbally request information. Before responding, consider asking for a request in writing to establish a record.
- An information request is not an appealable action. Unlike other actions by the agency, a request for information is not appealable. The request letter often includes language to this effect (and section 503(f) of Pennsylvania’s HSCA says so explicitly). A failure to respond, however, may result in penalties and/or enforcement.
- Pay attention to the scope of the request. EPA and/or PADEP may request information related to your use of PFAS or products containing PFAS – not just PFOA and PFOS – and precisely what constitutes PFAS continues to be a debated topic. In its October 2021 National PFAS Testing Strategy, EPA offered the following working definition:
“a structure that contains the unit R-CF2-CF(R’)(R”), where R, R’, and R” do not equal “H” and the carbon-carbon bond is saturated (note: branching, heteroatoms, and cyclic structures are included).”
EPA may not define PFAS in a request, and this working definition may not lend itself well to concisely defining the scope of your search and response. Consider also the site to which the request relates and your alleged connection to it (e.g., as to time, materials, shipments, etc.) as potentially bases to reasonably narrow your investigation and/or response. Consider making a record in your response of any such limitations and/or contacting EPA in advance of your response to clarify the scope of the request.
- Consider asserting objections. Consider asserting objections to ambiguities or overbreadth in the request, especially if the scope of the request is not reasonably tailored to specific substances, locations, or time periods.
- Consider requesting an extension if needed. Extensions may or may not be granted but some extension is not uncommon.
- Consider designating your response as confidential: EPA and/or PADEP request letters often include instructions on asserting a confidentiality claim over your response. Be sure to also consult 40 CFR Subpart B, and especially the CERCLA CBI rules at 40 CFR 2.310.
Section 503(h) of Pennsylvania’s HSCA provides a similar right to confidential treatment. Be aware that a failure to properly assert confidentiality in your response may result in a waiver of your ability to do so later.
- Your response will be a public record. Subject to any claims of confidentiality you assert, remember that your response will be part of the agency’s public record for a site and likely available under a federal Freedom of Information Act (FOIA) or Pennsylvania Right-to-Know-Law Request (RTKL). Responses should be well thought out with the understanding that public consumption, especially by local interested parties, is a possibility.
Responses to information requests may be the basis for later enforcement or contribution or similar claims by other parties, and the context and legal risks associated with the responses will vary. Consider consulting with your counsel early in the process.