EPA Proposes Designating Two PFAS ​“Forever Chemicals” as CERCLA Hazardous Substances

On August 26, 2022, the U.S. Environmental Protection Agency (“EPA”) released its highly anticipated plan to categorize two per- and polyfluoroalkyl substances (“PFAS”) as “hazardous substances” subject to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). This action is one of the more high profile elements of the Agency’s PFAS Strategic Roadmap, which outlines EPA’s approach to addressing PFAS in a more aggressive and precautionary manner.[1],[2] While the move is unsurprising, when considered in combination with the agency’s recent issuance of stringent recommended exposure levels for these chemicals, the proposed CERCLA listings may be the trigger of an avalanche of cleanup actions and associated litigation.

If finalized, the rule would subject PFAS, for the first time, to the Superfund liability and cost recovery scheme, and greatly enhance the number and pace of site cleanups involving PFAS contamination. Known as “forever chemicals” due to their resistance to breaking down in the environment and widespread presence in soils and water (and people), PFAS have been widely used in a variety of fire resistance, thermal insulation, water-proofing and other applications in products ranging across textiles, cookware, food packaging, fire-fighting foams, and cosmetics, among many others. Manufacturers of PFAS-containing products may very well have properties contaminated by these chemicals (which readily move into and reside in soils and surface and ground waters) and may face extensive cleanup costs through regulatory or private party actions.

Superfund Liability

Specifically, EPA’s proposal would designate two PFAS, perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”), and their salt and structural isomers, as “hazardous substances” under CERCLA. The CERCLA designation, if finalized, will expose a whole host of potentially responsible parties — current and former owners and operators of PFAS-contaminated facilities; generators and arrangers of PFAS disposal, treatment or transportation; and transporters that take PFAS to a site of their choosing for disposal or treatment — to liability for cleaning up PFAS-contaminated sites. PFAS manufacturers, military installations, airports, water treatment facilities and landfills are just a few of the entities that may be subject to PFAS liability under CERCLA.[3] Additionally, federal entities that transfer or sell their property will be mandated to provide notice about the storage, release, or disposal of PFOA or PFOS on the property as well as provide a covenant (a legal requirement in the deed) warranting that the property has been cleaned up from previous contamination or will do so if discovered in the future.[4]

Reporting Requirements

The proposed rule also imposes new reporting requirements for PFOA and PFOS releases that “meet or exceed the reportable quantity” of one pound or more within 24-hours of release. However, the rule leaves in place all reporting exemptions, including for federally permitted releases and the de minimis exemption.

Consequences

Superfund cost-recovery actions often involve dozens of parties in years-long litigation fighting over the scope of the cleanup, the appropriate cleanup level, and, of course, allocation of costs. The Proposed Rule highlights several areas of uncertainty:

[F]uture discretionary decisions about cleanup and response are difficult to quantify due to numerous, significant uncertainties such as: (1) How many sites have PFOA or PFOS contamination at a level that warrants a cleanup action; (2) the extent and type of PFOA and PFOS contamination at/near sites; (3) the extent and type of other contamination at/near sites; (4) the incremental cost of assessing and remediating the PFOA and/or PFOS contamination at/near these sites; and (5) the cleanup level required for these substances.

These uncertainties are compounded by the fact that, in June, EPA updated their drinking water health advisories for PFOS and PFOA, lowering the recommend exposure level by several orders of magnitude: from 70 parts per trillion (ppt) to 0.004 ppt for PFOA and 0.02 for PFOS. These values are well below the detection limit of 4.0 ppt.

EPA notes in its press release that it “will use enforcement discretion and other approaches to ensure fairness.”

Next Steps

The Proposed Rule is available here. EPA anticipates publishing the Notice of Proposed Rulemaking in the Federal Register soon, initiating a 60-day comment period. EPA also intends to issue in coming days an Advanced Notice of Proposed Rulemaking that will address the anticipated CERCLA listing of at least some of the over 9,000 separate PFAS chemicals currently in existence. Likely candidates include GenX, perfluorobutane sulfonic acid, perfluorobutyrate, perfluorohexanoic acid, perfluorohexane sulfonate, perfluorononanoic acid and perfluorodecanoic acid.

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[1] The Press Release is available at https://www.epa.gov/newsreleases/epa-proposes-designating-certain-pfas-chemicals-hazardous-substances-under-superfund.

[2] See more at https://www.kelleygreenlawblog.com/2022/08/pfas-and-tri-more-lots-more-to-come/. It is also worth noting that this is the first time EPA has proposed to designate hazardous substances directly under CERCLA § 102(a), signaling the Agency’s expansionist posture on PFAS regulation.

[3] CERCLA § 107(a) 42 U.S.C. § 9607(a). The CERCLA legal infrastructure has been aptly nicknamed by practitioners as the “polluter pays” principle.

[4] This is also required under CERCLA § 120(h).