The Environmental Protection Agency (EPA) proposed on Aug. 22 to designate two per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The proposal applies to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers.
In light of the proposed rule, companies should begin to prepare for potentially significant and wide-ranging implications. The proposal comes on the heels of EPA’s publication in June of new drinking water health advisory levels (HALs) for PFOA, PFOS, and two other PFAS compounds.
The designation of PFOA and PFOS as hazardous substances under the rule would allow EPA to require potentially responsible parties to clean up PFAS contamination and pursue claims for cost recovery.
Liability for Remediation
The imposition of strict joint and several liability under CERCLA will be one of the most consequential implications. As a result, EPA can require potentially responsible parties (PRPs) to remediate PFOA and PFOS contamination, as well as seek recovery of clean-up costs from potentially responsible parties.
Based on current federal regulations for PFAS, EPA has the authority to conduct a response action to address the release of a “pollutant or contaminant,” but only if the agency first determines that the release may present an “imminent and substantial danger” to human health or the environment.
Importantly, CERCLA does not currently impose liability on PRPs for releases of a pollutant or contaminant that is not a hazardous substance. Adoption of the proposed rule would change this.
Along these same lines, PRPs do not currently have any legal recourse under CERCLA to recover costs they incur to investigate and remediate PFAS contamination. The designation of PFOA and PFOS as hazardous substances, however, would permit PRPs to pursue claims for contribution or cost recovery under CERCLA in connection with those costs.
The ability to seek cost recovery or contribution under CERCLA gives PRPs an incentive to be proactive in clean-up efforts or enter into early settlements with EPA to address PFAS contamination rather than risk spending time and money engaging in protracted litigation.
New Superfund Sites
The designation of PFOA and PFOS as hazardous substances will also make it easier for EPA to designate sites with PFAS contamination as Superfund sites that have been placed on the National Priority List (NPL) and prioritized for cleanup by the agency.
To place a site on the NPL, EPA must go through a hazard ranking analysis. The designation of PFOA and PFOS as hazardous substances increases the value assigned to these substances in the hazard ranking scoring system, which will lead to higher hazard ranking scores for sites where PFOA and PFOS are present.
Thus, the proposed rule creates the potential for EPA to designate new Superfund sites based on the existence of PFAS contamination. Likewise, the agency could reopen closed Superfund sites to require PFOA or PFOS be addressed or may seek to reopen settlement agreements and remediation plans at existing sites.
In the latter scenarios, potentially responsible parties that stopped budgeting for response costs at certain legacy or existing sites may be faced with the possibility of once again having to spend substantial funds to address PFOA or PFOS contamination.
The hazardous substance designation also triggers a variety of other regulatory obligations. For example, companies would be required to report releases of PFOA or PFOS above certain thresholds.
Likewise, the designation may lead to increased permitting requirements under other environmental statutes such as the Clean Water Act and the Resource Conservation and Recovery Act.
One open question that the proposed rule does not answer is what clean-up standards will govern PFOA and PFOS remediation. In June, EPA published new interim drinking water HALs for several PFAS.
The new HAL for PFOA is 0.004 parts per trillion (ppt) and the new HAL for PFOS is 0.02 ppt, both of which are significantly lower than EPA’s prior HALs for PFOA and PFOS.
While the interim health advisory levels are not enforceable drinking water standards, they do signal EPA’s intent to adopt drinking water standards that are likely to be extremely low.
EPA acknowledged in its announcement of the proposed rule that the levels are below those at which analytical methods can measure PFOA or PFOS in drinking water, but EPA nevertheless does not anticipate raising them.
Faced with the reality of PFOA and PFOS being designated as hazardous substances, there are a couple of things companies can begin to do now to prepare.
First and foremost, companies can begin to evaluate their own PFAS liability. This will give them a more accurate understanding of the scope of any potential CERCLA liability and either begin setting aside funds to address any PFAS contamination, or begin their own site investigations and clean-ups.
Along those same lines, companies can also evaluate potential claims they have against third parties or other PRPs against whom they may be able to assert cost recovery or contribution claims, so they are not caught unprepared if they face EPA action.
The regulation of PFAS has picked up speed recently and the trend seems unlikely to slow anytime soon. In Oct. 2021, EPA announced its PFAS Strategic Roadmap and issued new interim health advisory levels this past June.
At the same time that it proposed this most recent rule, EPA also announced that it anticipates soon issuing an advanced notice of proposed rulemaking to seek public comment on designating other PFAS compounds as CERCLA hazardous substances.
Ultimately, increased federal regulation and enforcement related to PFAS have been anticipated for some time, and this proposed rule brings that reality yet closer for the regulated community. Companies that use materials containing PFAS should proactively plan for new regulatory obligations and environmental liabilities.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
David F. Edelstein is a shareholder and Charles J. Dennen is a partner at Archer & Greiner. Both are experienced in many areas of federal and state environmental law, including litigation and regulatory counseling.