April 19, 2024Client Alert

PFOA and PFOS are CERCLA Hazardous Substances; Prepare Accordingly

The U.S. Environmental Protection Agency (EPA) released its Pre-Publication Notice of a Final Rule designating Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS), along with their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. According to EPA, this designation is based on significant evidence, including epidemiological and toxicological studies, that PFOA and PFOS, when released into the environment, may present a substantial danger to public health or welfare or the environment.

Release Reporting

The rule requires releases of PFOA and PFOS that meet or exceed the reportable quantity (1 pound) within a 24-hour period to be reported to the National Response Center, state or tribal emergency response commission, and the local or Tribal emergency planning committee for the areas affected by the release. This reporting requirements applies to both continuous and non-continuous releases.

PFAS Enforcement Discretion Policy Announced

Simultaneous to the final designation of PFOA and PFOS as CERCLA hazardous substances, EPA issued a PFAS Enforcement Discretion and Settlement Policy Under CERCLA that provides direction on how EPA will exercise its enforcement discretion regarding per- and polyfluoroalkyl substances (PFAS) contamination in the environment. According to the policy, EPA “will focus on holding responsible entities who significantly contributed to the release of PFAS into the environment, including parties that manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.”

Conversely, EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA. The guidance includes a non-exclusive list of entities for whom EPA believes the equities do not support seeking response actions or costs.  This non-exclusive list includes farms where biosolids are applied to the land, publicly owned/operated municipal landfills, community water systems and publicly owned treatment works, municipal separate storm sewer systems, municipal airports, and local fire departments. For these parties, EPA can use its CERCLA statutory authority to enter into settlements that provide contribution protection from third party claims for matters addressed in a settlement. The guidance also includes a discussion of the equitable factors that will inform EPA’s enforcement discretion with regard to entities that are not specifically identified on EPA’s non-exclusive list.

Recognizing that CERCLA’s liability framework is broad, EPA specifies that the statutory affirmative defenses and its enforcement discretion provide “mechanisms to narrow the scope of liability and focus on the significant contributors to contamination.” The policy identifies those who have manufactured PFAS or used PFAS in the manufacturing process, and other industrial parties, as “major PRPs” and also identifies a list of factors that EPA will consider in exercising its enforcement discretion.

CERCLA Response Costs, Cost Recovery and Contribution Actions

PFOA and PFOS designation as CERCLA hazardous substances provides EPA with broad discretion to decide whether to respond to a release or threat of release under CERCLA and then recover any expended costs for remediation or removal actions from potentially responsible parties (PRPs).  In addition to this authority, the designation of PFOA/PFOS as CERCLA hazardous substances also allows any person to sue a PRP to recover necessary responses costs that have been incurred to remediate PFOA/PFOS in the environment. In addition, a PRP that has been required to pay response costs to someone else can assert a contribution claim against other PRPs in court to compel a more equitable distribution of response costs.

Going Forward; Looking Backward

EPA’s designation becomes final 60 days after publication in the Federal Register. It will result in a new wave of litigation trying to force the clean up of PFOA and PFOS released into the environment, and the allocation of those costs among a broad group of potentially responsible parties under the CERCLA joint and several liability provisions. Less than two weeks ago, EPA released its drinking water standards, concluding that there is no safe level of these two chemicals in drinking water. This will undoubtedly prompt lawsuits seeking to clean up PFOA and PFOS to extremely low concentrations.

Although the EPA’s PFAS Enforcement Discretion and Settlement Policy Under CERCLA might be well intentioned, it does not change the strict liability provisions of the CERCLA law and the policy relies entirely on the EPA’s exercise of discretion.  EPA makes clear that its new policy does not create new legal obligations or limit or expand obligations under any federal, state, Tribal, or local law.

Michael Best has been tracking this rulemaking effort, and other PFAS regulatory efforts in numerous states and with EPA. The environmental team at Michael Best has experience advising clients on a myriad of PFAS-related issues. If you have any questions or concerns about how this designation may impact your facility, operations and/or legal liability, please contact your Michael Best attorney or any of the authors listed here.

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