Cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) are about to get a lot more expensive. The U.S. Environmental Protection Agency (EPA) announced on September 6, 2022, that it will propose to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two of the most widely used per- and polyfluoroalkyl substances (PFAS), as hazardous substances under CERCLA. The rulemaking would also require entities immediately to report releases of PFOA and PFOS that meet or exceed the reportable quantity (RQ). This article discusses the proposal.
Background
The proposal is part of the agency’s PFAS Action Plan. The EPA is sparing no effort in diminishing exposure to PFAS based on their potential to cause human health and environmental injury. The EPA and many states and global authoritative bodies have enacted a broad range of legislative and regulatory initiatives intended to prevent and/or diminish PFAS production, use and distribution in commerce.
Classifying PFOA and PFOS as hazardous substances under CERCLA means that, upon designation, any person in charge of a vessel or an offshore/onshore facility, as soon as aware of the release of such substances at or above the RQ, must immediately report the release to the federal, state, Tribal, and local authorities. The proposed RQ for these designations is one pound or more in a 24-hour period. The EPA will consider adjusting the RQs once it has more information.
The five broad categories of entities potentially affected by this action include: PFOA/PFOS manufacturers (including importers and importers of articles); PFOA/PFOS processors; manufacturers of products containing PFOA/PFOS; downstream product manufacturers and users of PFOA/PFOS products; and waste-management and wastewater-treatment facilities.
When selling or transferring federally owned real property, U.S. agencies would be required to meet all the property transfer requirements in CERCLA Section 120(h). Per the EPA, the Department of Transportation (DOT) also will be obligated to list and regulate PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act.
The final designations would provide additional tools the government and others could use to address contamination and facilitate an increase in the pace of cleanups of PFOA/PFOS-contaminated sites. The indirect, downstream effects of these designations, according to the EPA, could include the following:
• All agencies exercising delegated CERCLA authority could respond to PFOA/PFOS releases and threatened releases without making the imminent and substantial danger finding that currently is required for responses;
• The EPA and delegated agencies could require potentially responsible parties to address PFOA or PFOS releases that pose an imminent and substantial endangerment to public health or welfare or the environment;
• All delegated agencies could recover cleanup costs from potentially responsible parties, to facilitate having polluters and all others responsible, rather than taxpayers, pay for these cleanups; and
• Private parties that conduct cleanups that are consistent with the National Oil and Hazardous Substances Contingency Plan (NCP) could also recover cleanup costs from potentially responsible parties.
Discussion
The proposal comes as no surprise. The designation of these chemicals, frequently found in contaminated media, would mean the CERCLA liability and cost recovery scheme would apply to the cleanup of contaminated media once the final rule is issued, as is expected. As cleanup and disposal costs for these substances are high, remediation costs are expected to increase greatly. Reporting requirements would also apply to releases of one pound or more of PFOA/PFOS within a 24-hour period that are not otherwise exempt from reporting.
Not everyone is pleased with the initiative. Senator Capito (R-WV) expressed concern with the “uncertainty and unintended consequences” of the proposal and urged the EPA to prioritize development of technologies to detect, remove and destroy PFAS at the expense of the government, not manufacturers. The Environmental Working Group, on the other hand, has identified some 42,000 industrial and municipal sites in the United States known or suspected still to be using PFAS, although how many involve PFOA and PFOS is unclear.
The remediation implications of the proposal are staggering. Given the ubiquity of the substances and their many uses, few entities will be spared CERCLA and related cleanup liability in cases where PFOA and PFOS contamination is found. Many are expected to comment on the proposal.
