EPA Proposes PFAS Hazardous Substance Designation

In a highly controversial move, on Sept. 6 the Environmental Protection Agency (EPA) published its notice for a proposed federal rule to designate two specific “forever chemicals” – PFOA and PFOS – as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. Parties have 60 days to submit comments. EPA will take those comments under consideration for development of a final rule, expected in late 2023.

PFOA and PFOS are specific forms of a broad class of man-made chemicals known as per- and polyfluoroalkyl substances (PFAS). PFAS are known for their durability, heat resistance and waterproof qualities, and were developed for countless industrial and consumer goods applications going back to the 1940s. Certain scientific studies have shown specific PFAS such as PFOA and PFOS to be persistent in the environment and toxic to humans and animals. In recent years, the EPA has taken significant pre-regulation steps to lay the foundation for regulations such as the CERCLA rule.

Under the proposed rule, any release of PFOA or PFOS at the reportable quantity of one pound in a 24-hour period must be reported to federal, state, tribal and local authorities. It will require PFOA and PFOS to be listed and regulated as hazardous materials by the Department of Transportation, which will impact pipelines and other chemical transporters. It will also require contamination investigation and disclosures for the transfer of properties, which will undoubtedly affect due diligence and the purchase and sale of properties. There is more detail in the proposed rule but, in sum, this is a significant move from the EPA with impacts to a wide range of stakeholders.

In addition to addressing acute releases of hazardous substances, CERCLA is a remediation and cost-recovery mechanism that allows private parties and the government to bring litigation to recover costs associated with cleanup of CERCLA hazardous substances. Liability under CERCLA attaches when there is a hazardous substance at a location; actual or potential danger of releasing the hazardous substances into the environment; and cleanup costs will or have been incurred. CERCLA is a strict liability statute – no finding of “fault” is necessary. Furthermore, CERCLA liability is joint and several, meaning any potentially responsible party (PRP) could be held accountable for the entire cost of cleaning up a contaminated site, even if other entities were also responsible. PRPs include present owners and operators; past owners and operators if hazardous substance disposal occurred during their tenure; any entity that generated the hazardous substances that ended up at the site; and certain transporters of hazardous substances. Simply put, CERCLA has some sharp teeth.

But wait, there’s more! Expect to see a growing number of PFAS-related regulations at both the state and federal levels including regulations related to drinking water, ground water, surface water, consumer goods and disposal of various PFAS. Now is the time for parties to evaluate and take measures to address PFAS-related risks and submit comments during applicable periods.

This article first appeared in The Journal Record on September 9, 2022, and is reproduced with permission from the publisher.