On Jan. 10, 2022, the U.S. Environmental Protection Agency (EPA) initiated rulemaking activities to regulate two Per- and Polyfluoroalkyl Substances (PFAS) as “hazardous substances” under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund. This rulemaking will lead to a game changing regulatory authority with profound impact on a broad array of affected interests. The specific action taken by EPA this week consisted of submitting a plan to the White House Office of Management and Budget to produce a proposed rule to regulate certain PFAS, with such action set to occur this Spring.
PFAS, a class of over 5,000 chemicals first discovered almost eighty years ago, has garnered significant recent attention from state government regulators, businesses, citizens, environmental interest groups, environmental professionals and the media. PFAS are prevalent in consumer products including clothing, carpeting, cosmetics, kitchenware and food packaging.
Persistent in the environment, PFAS have also been linked to significant health concerns. Regulatory authorities, including the State of California, have recently recognized PFOA and PFOS, the two PFAS the EPA proposes to list as CERCLA hazardous substances, as recognized or likely carcinogens. In developing these rules, it’s possible the EPA may determine that any level of PFOA and PFOS in drinking water is unacceptable.
Who is impacted by the EPA’s proposed PFAS regulations?
Identifying PFAS as a CERCLA hazardous substance may impact the following types of organizations:
- Manufacturers: Businesses that have used or managed PFAS in manufacturing processes, including in coatings, surfactants, waterproofing, nonstick applications, and oil and stain resistant properties
- Businesses with Class B Firefighting Systems: Any business with a Class B Firefighting System that utilized a PFAS-containing aqueous film forming foam (AFFF) and that conducted National Fire Protection Association supported periodic testing of such systems
- Owners of property where AFFF was applied: Any property owner or facility operator that was the site of a fire controlled with AFFF
- Buyers and sellers of businesses: Any party to an acquisition or divestiture of business interests or assets, including such transactions that use the ASTM Phase I Environmental Assessment protocols in transactional due diligence to seek to qualify for an exemption from liability for performance of “All Appropriate Inquiry”
- Brownfield property owners: Any property owner, developer or municipality associated with the redevelopment of Brownfield properties
- Dispute and litigation participants associated with hazardous substances: Any party that is, has been, or could be a “potentially responsible party” associated with a hazardous substance remediation matter under CERCLA, and potentially under relevant state law, as well as parties to litigation related to such matters
- Wastewater utilities: Publicly owned treatment works, or POTWs, that receive and treat industrial – and perhaps even domestic – wastewater and that manage sludge and biosolids from the wastewater treatment by practices including disposal at a landfill or land spreading
- Municipalities: Municipalities that have managed solid waste at owned landfills or that have fire departments that possess or that have used AFFF
- Airports: Airports that have used AFFF
- Landfills: Landfills that have received waste containing PFAS in products\
Importantly, once the EPA formally designates PFOA and PFOS as CERCLA hazardous substances, this will empower the EPA to utilize the legal authorities of CERCLA §106 to order responsible parties, including owners and operators of property and facilities with PFOA and PFOS contamination, to undertake response actions to address the contamination. The EPA will also be able to use CERCLA §107 to recover its costs of response from such responsible parties for similar PFAS contamination. Additionally, private parties, environmental interests, and state and local governments will have the legal tools under CERCLA §107 and §113 to bring cost recovery and contribution actions, respectively, for PFOA and PFOS investigation and remediation expenses.
Final PFAS rules expected in spring of 2023
The EPA’s rulemaking activities are targeting spring of 2023 for publication of a final rule recognizing PFOA and PFOS as CERCLA hazardous substances. This will include standards for “reportable quantities” determining what amount of PFOA and PFOS, when released or when detected in the environment triggers an obligation to notify the federal government and other authorities. The actions that EPA has commenced represent one component of a holistic approach to regulating PFAS in all media, as announced in the EPA’s October 2021 “PFAS Strategic Roadmap.”
For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Environmental Law Practice Group.