The Environmental Protection Agency (EPA) has made its first move towards adding PFAS (per- or polyfluoroalkyl substances) to the list of hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund). This step was first announced in EPA's PFAS Strategic Roadmap—an outline of the overarching plans of the Biden Administration to address PFAS contamination—published in October 2021. EPA is proposing to designate two PFAS legacy chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous because "the totality of the evidence . . . demonstrates that they can pose substantial danger to public health or welfare or the environment." The proposal could expose a wide range of industries to potential Superfund cleanup liability for releases of PFOA and PFOS, from chemical manufacturing to medical devices to textile and paper mills.
Under the proposed rule, the two PFAS chemicals would be designated as hazardous substances under CERCLA. This proposal would carry two significant implications: first, it would require companies to report PFOA and PFOS releases of one pound or more in a 24-hour period. Second, the rule would give EPA the authorization to order cleanups and to recover cleanup costs from potentially responsible parties. Private parties that conduct cleanups consistent with the National Contingency Plan could also recover PFOA and PFOS cleanup costs from potentially responsible parties.
This proposal carries broad implications for potential CERCLA liability for a variety of companies, including: (1) PFAS manufacturers or importers; (2) PFAS processors; (3) manufacturers of products containing PFAS; (4) downstream product manufacturers and users of PFAS products; and (5) waste management and wastewater treatment facilities. EPA attempted to temper the potentially far-reaching consequences of the proposal by stating that it "will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination." The agency plans to focus on entities that have manufactured and released significant amounts of PFAS into the environment.
This rule is not the end of the road for using Superfund to address PFAS contamination: in the proposal, EPA announces that it will issue a proposed rulemaking this year seeking information to assist in developing future designations of other PFAS chemicals as hazardous substances. Companies with an operational connection to PFAS may want to carefully consider the potential liability implications of the proposed rule and to monitor EPA's future rulemakings regarding the designation of other PFAS chemicals as hazardous.
There is likely to be a continuing string of PFAS-related rulemaking efforts emerging from the EPA pursuant to EPA's PFAS Strategic Roadmap. This will likely include a significant reporting rule, issued pursuant to the Toxic Substances Control Act (TSCA) Section 8(a), that will require manufacturers, importers, and processors of PFAS to submit information to EPA concerning the substances they manufacture, import, or process as well as the quantities and various uses of those materials.
Once the CERCLA proposed rule is published in the Federal Register, entities will have 60 days to comment on the proposal. Our team will continue to follow and report on developments in this area, including any moves by EPA to designate other PFAS chemicals as hazardous substances under CERCLA.
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