Gavel to Gavel: Forever Chemicals Enter an Era of CERCLA

The U.S. Environmental Protection Agency (EPA) remains steadfast in its priority to regulate per- and polyfluoroalkyl substances (PFAS).

PFAS, commonly known as “forever chemicals,” include thousands of man-made chemical compounds that have been used in manufacturing and consumer products for decades. Due to the uniquely durable properties of PFAS and their widespread use in manufacturing processes, these compounds can accumulate in the environment.

On May 8, 2024, EPA unveiled its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). This final rule gives EPA and authorized agencies authority to remediate contamination, mandate reporting, and impose cleanup costs of PFOA and PFOS releases onto potentially responsible parties (PRP or PRPs).

The final rule imposes numerous reporting requirements for PFOA or PFOS releases above the reportable quantity within a 24-hour period. Any person in charge of a vessel or facility must report releases exceeding one pound (1 lb) to the National Response Center, state or tribal authorities, and local emergency responders. In addition, PFOA and PFOS must be considered during Phase I Environmental Assessments. As a result, landowners and prospective purchasers should incorporate due diligence measures to avoid potential liability issues during real estate and corporate transactions.

Designating PFOA and PFOS as hazardous substances will have a ripple effect on CERCLA’s liability scheme. Superfund liability is joint and several, which means anyone PRP may be held accountable for the entire cleanup cost of a site. Moreover, Superfund liability is strict; no finding of fault is necessary. The final rule will give PRPs an avenue to pursue cost recovery and contribution actions under CERCLA.

On April 19, 2024, EPA released a PFAS Enforcement Discretion and Settlement Policy (Policy Guidance), which highlighted an enforcement focus on parties who significantly contribute to the release of PFAS contamination in the environment. Although the Policy Guidance is not binding, it provides insight into EPA’s enforcement efforts.

Potential challengers to the final rule include industry groups, water systems, and passive receivers of PFAS. Legal challenges must be filed within ninety (90) days of the final rule’s publication in the Federal Register. Unless a court grants a stay of the final rule, it becomes effective on July 8, 2024. Notably, EPA may designate additional PFAS as hazardous substances under CERCLA in the future.

Crowe & Dunlevy will continue to monitor potential legal challenges to the final rule and keep you informed of any developments.

This article first appeared in The Journal Record on June 12, 2024, and is reproduced with permission from the publisher.