Broad PFAS Cleanup Liability Nears With Proposed EPA Rule (1)

Two “forever chemicals” would be designated hazardous substances under a rule the EPA proposed Friday that moves industries and federal facilities a step closer to strict liability to pay for their current or past releases of the compounds.

The Environmental Protection Agency’s proposed rule (RIN: 2050-AH09) would designate perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS) and their salts and structural isomers as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known also as Superfund. Both chemicals “may present a substantial danger to human health or welfare or the environment,” the agency said.

Both substances are no longer used commercially, meaning the rule would largely target sites with legacy contamination.

If finalized the rule would jump start cleanups across the nation by many industrial sectors and the military.

“The proposed rule could impact not just companies or industries that currently have PFAS in their operations or manufacturing processes, and the potential for contamination at their sites, but also implicate legacy contamination from prior operators, owners of sites,” Stephanie R. Feingold, a partner focusing on environmental issues at Morgan, Lewis & Bockius LLP, said prior to the rule’s publication.

“Communities have suffered far too long from exposure to these forever chemicals. The action announced today will improve transparency and advance EPA’s aggressive efforts to confront this pollution, as outlined in the Agency’s PFAS Strategic Roadmap,” EPA Administrator Michael S. Regan said in a statement. “Under this proposed rule, EPA will both help protect communities from PFAS pollution and seek to hold polluters accountable for their actions.”

Video: What are ‘Forever Chemicals’?

Step Towards Cleanups

The EPA’s designation wouldn’t set cleanup levels, but would be a major step toward remediation. The rule is expected to cost more than $100 million annually if finalized.

Airports, manufacturers, waste handlers, firefighting training facilities, and military bases and ships are among the entities that would have to report to the EPA releases of one pound or more of PFOA and PFOS over a 24-hour period. That information could trigger cleanups.

States such as Pennsylvania, Massachusetts, and Maine that already have soil cleanup or other standards for the two PFAS would have a jump start on demanding cleanups after EPA finalizes the rule. State standards are considered Applicable or Relevant and Appropriate Requirements (ARARs) that factor into cleanup decisions, Feingold said.

CERCLA designation would give the EPA “important new tools to ensure polluters are paying,” said Melanie Benesh, an attorney and vice president with the Environmental Working Group.

If the agency spends government funds to clean up a site, it can sue polluters to recover costs. Non-cooperative parties may be fined for each day they fail to take required actions.

The listing would boost a site’s chance of being included on the National Priorities List (NPL) of Superfund sites and let the agency require shorter-term protections such as ordering responsible parties to provide bottled water, Benesh said.

Legal Authorities

Friday’s CERCLA rulemaking, if finalized, would mark the first time in 42 years that the EPA directly designated chemicals to be CERCLA hazardous substances. Pollutants have been added indirectly to the Superfund list, because they were regulated under the Resource Conservation and Recovery Act (RCRA) or other environmental statutes and therefore met Superfund’s criteria.

The proposed rule therefore provides the agency’s first effort to explain how it interprets its authority to add substances to the CERCLA list. The agency’s first-time interpretations of its legal authorities often are challenged in court.

PFOS and PFOA are the two most well-studied members of a huge group of per- and polyfluoroalkyl substances (PFAS), dubbed “forever chemicals” because some don’t naturally break down in the environment and remain for years in people’s bodies. PFOS and PFOA also are associated with increased cholesterol, a risk factor for heart disease; decreased immune responses; thyroid and kidney problems; and certain cancers.

Both chemicals are commonly detected in soil and water when looked for, because chemicals made with them have been used in thousands of industrial and consumer products since the 1940s. Neither PFOS nor PFOA is made in the US today. Other forms of PFAS are substituted for them.

After the 60-day comment period closes on Friday’s CERCLA proposal, the EPA plans to issue an Advance Notice of Proposed Rulemaking seeking public comment on designating other PFAS chemicals as hazardous substances under the same statute.