EPA PROPOSES NEW RULE TO MAKE PFAS A CERCLA “HAZARDOUS SUBSTANCE”
The proposed rule would impose significant liability for any site contaminated by PFAS. If adopted, this rule would have major consequences for manufacturers, brownfield-property owners, solid-waste managers, wastewater utilities, and landfills.
The U.S. Environmental Protection Agency (“EPA”) recently initiated the process to designate two per- and poly-fluoroalkyl substances (“PFAS”) as “hazardous substances” under the Environmental Response, Compensation, and Liability Act (“CERCLA”).
PFAS are synthetic, environmentally persistent chemicals. A range of commercial and industrial applications make them common. Examples include firefighting foam, greaseproof food wrapping, nonstick cookware, and many water-repellant fabrics, carpets, and other textiles.
The proposed rule targets the two most common PFAS substances: perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”), including their salts and structural isomers. Each would qualify as a “hazardous substance” under CERCLA, the federal law governing cleanup of contaminated sites.
If finalized, this rule would have major consequences for major industries, including manufacturers, brownfield-property owners, solid-waste managers, wastewater utilities, and landfills. Companies would face enhanced reporting requirements and increased risk of CERCLA liability. The EPA could order cleanups at contaminated sites and recover cleanup costs from potentially responsible parties. Private parties could also sue to recover any PFAS cleanup costs from potentially responsible parties.
Anyone who manufacturers, imports, processes, uses, generates, transports, or disposes of PFAS would risk ongoing liability under CERCLA. What is more, CERCLA liability is retroactive, meaning that any past or present owners and operators of a site previously contaminated by PFAS could have liability. Affiliated corporate entities could also face liability.
Where applicable, such liability could be immense. Liability would be strict, and any potentially responsible party could have joint and several liability for the whole cleanup.
Still, it remains unclear what standards would apply to PFAS cleanups. The EPA recently reduced its lifetime health advisory levels for PFAS in drinking water. The new advisory levels are 0.004 parts per trillion for PFOA and 0.20 parts per trillion for PFOS, although those levels remain subject to legal challenges. The EPA has also announced that it will propose a maximum contaminant level for PFAS under the Safe Drinking Water Act by the end of this year. Those developments promise to complicate the PFAS legal landscape.
The EPA’s proposed rule is available here. It is subject to a 60-day comment period, which will end on November 7, 2022. Until then, the regulated industry can submit written comments explaining the compliance costs and effects of the proposed rule and forcing the EPA to explain why the proposed rule is necessary. Those comments can also lay the groundwork for a legal challenge. The EPA says that it hopes to finalize the proposed rule in August 2023.
Attorneys at Baird Holm LLP specialize in environmental law and federal rulemaking procedures. Please do not hesitate to contact us if you have questions about this proposed rule or any other related matter.
 Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 87 Fed. Reg. 54415 (Sept. 6, 2022).
 Lifetime Drinking Water Health Advisories for Four Perfluoroalkyl Substances, 87 Fed. Reg. 36848 (June 21, 2022).