EPA Proposes to Designate Two PFAS Chemicals as Hazardous Substances Under CERCLA: Quick Answers to Top Questions
By Ron Tenpas, George Wilkinson, Ben Lippard, Corinne Snow, Kelly Rondinelli, Simon Willis, and Hannah Flesch
The Environmental Protection Agency (“EPA”) issued a long-anticipated proposal to designate two per- and polyfluoroalkyl substances (“PFAS”) as hazardous substances under the federal Superfund law known as the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Released on August 26, 2022, the proposed rule represents the first time EPA is proposing to use CERCLA Section 102(a) to add new “hazardous substances” covered by the Act. Our PFAS Taskforce will be diving into the important consequences of this proposed rule in the coming weeks.
Below we provide an overview of the proposed rule and additional context about CERCLA; more specifically, what this proposed rule will mean for regulated entities.
Question: What is EPA proposing to do?
Quick Answer: To add two specific PFAS chemicals, perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”), to the definition of “hazardous substances” under CERCLA.
Question: What is CERCLA?
Quick Answer: CERCLA is a strict, presumptively joint-and-several liability regime for addressing hazardous substances in the environment. Any person held liable for a CERCLA site can potentially be held responsible for all cleanup costs. Those who are liable for cleanup costs can include (i) current owners and operators of a facility where hazardous substances have been released; (ii) former owners and operators who owned or operated the facility where hazardous substances were disposed of or released; (iii) generators and those who arranged for disposal of hazardous substances at a facility; and (iv) those who transported hazardous substances for disposal at a facility. Collectively, these four categories are considered potentially responsible parties (“PRPs”).
CERCLA enables the federal government to order a PRP to clean up and remediate sites that have actual or threatened releases of hazardous substances into the environment and also allows EPA to undertake the cleanup itself. Although any individual PRP could, in theory, be held liable for the full cost of the cleanup, CERCLA also provides a mechanism where a PRP can recover a proportional share of the costs from other PRPs based on factors such as relative contribution to the contamination and ensuing cleanup costs. As a result, private parties and government entities routinely joust, both in negotiations and litigation, over the nature and extent of cleanup and how to apportion CERCLA site cleanup costs.
In addition to providing EPA the authority to direct cleanups (or to conduct the cleanup itself) and setting the rules for apportioning the costs of cleanups, CERCLA also has certain hazardous release reporting requirements, often colloquially known as “spill reporting” requirements, although the requirements also apply to air releases and releases of solids. Those provisions require facility owners or generators of a hazardous substance to notify the National Response Center as soon as they know about a hazardous substance release that equals or exceeds a certain, chemical-specific amount known as a reportable quantity.
Question: What does it mean to be a “hazardous substance?”
Quick Answer: CERCLA defines a hazardous substance as a substance already listed or designated under other environmental statutes, including hazardous air pollutants under Section 112(b) of the Clean Air Act, toxic pollutants under Section 307(a) of the Clean Water Act, and any element, compound, or substance designed under Section 102 of CERCLA that may present substantial danger to public health or welfare or the environment. This last category is where EPA proposes that PFOA and PFOS be designated as “hazardous substances.” If the proposal is finalized, PFOA and PFOS would be added to the list of more than 800 substances designated as hazardous under CERCLA.
Question: What are PFOA and PFOS?
Quick Answer: “PFAS” refer to a wide variety of man-made chemicals. According to EPA, since the 1940s, PFAS have been manufactured and used in a variety of industries in the United States. Products containing PFAS include stain- and water-repellant fabrics, nonstick products, paints, waxes, cleaning products, and fire-fighting foams used to extinguish petroleum fires at airfields, refineries, military bases, and other locations.
PFAS may be found in groundwater or soil, including at or around sites that manufactured or used these products, depending on how their manufacture and use was managed. EPA has been investigating the link between PFAS and potential health impacts.
PFOA and PFOS are two of the most extensively produced and studied PFAS. Both are persistent in the human body and the environment as they do not readily break down, thus accumulating over time. PFOA and PFOS production in the United States was largely phased out in the early 2000s.
Question: Does this proposal apply to all PFAS?
Quick Answer: No. While there are thousands of PFAS chemicals, this proposal only applies to two of the more well-known PFAS: PFOA and PFOS.
Question: What kind of liability can you face under CERCLA?
Quick Answer: A PRP can be held liable for:
- Government cleanup costs;
- Damages to natural resources;
- The costs of certain health assessments; and
- Injunctive relief (i.e., performing a cleanup) where a site may present an imminent and substantial endangerment.
Question: Does the proposed rule have an immediate effect?
Quick Answer: No. EPA has issued a proposed designation, which must undergo public notice and comment and further review by EPA before it issues a final determination. Interested parties have sixty days to comment on the proposed designation once EPA publishes it in the Federal Register. EPA has said that it intends to issue a final determination in the summer of 2023.
Question: If EPA finalizes this proposal, and there is PFOA or PFOS already in the soil or groundwater on my property, am I violating the law?
Quick Answer: No, it is not “illegal” to simply have a CERCLA hazardous substance in the environment at a property that you own, but EPA could have the authority to require you clean up the contamination if it determines that the site poses a threat to people and the environment. Exactly when EPA would deploy this authority depends on site-specific conditions such as proximity to people or sensitive environments.
Question: How expensive will it be to clean up PFOA or PFOS contamination?
Quick Answer: This will largely depend on the specific site and how EPA decides to implement the requirements at any given site. There are, however, challenges to addressing PFOA and PFOS contamination due to some of their chemical properties.
Question: If EPA finalizes this proposal, what are some of the direct consequences?
- Any person in charge of a vessel or facility1 must immediately notify the National Response Center if he or she has knowledge of a release of one pound or more of PFOA or PFOS in a 24-hour period. Owners or operators must also immediately notify state, local, or Tribal officials under the Emergency Community Right-to-Know Act.
- The federal government will have certain obligations when selling or transferring land where PFOA or PFOS “was stored for one year or more, known to have been released, or disposed of.”
- Because CERCLA requires substances designated as hazardous to be listed and regulated as hazardous materials by the Department of Transportation (“DOT”), any entity who transports PFOA or PFOS would be subject to various DOT regulations that govern the safe transportation of these substances.
Question: If EPA finalizes this proposal, what are some of the likely indirect consequences?
Quick Answer: As we previously highlighted, a hazardous substance designation under CERCLA may lead to potential indirect effects for the regulated industry:
- Sites: New sites may be added to the National Priority List for cleanups. It is also possible that sites previously deemed remediated or closed by regulatory authorities will be reopened. These potential impacts will depend heavily on site-specific conditions, but entities should be aware of them.
- Costs: Addressing PFOA or PFOS contamination may increase the costs of cleanup actions at existing sites.
- PRPs: Given the extensive range of consumer and industrial products that use PFOA and PFOS, new PRPs may also be identified at sites with just PFOA and PFOS contamination.
- Enforcement: EPA and its counterparts at the Department of Justice may begin taking enforcement action to identify PRPs and require them to clean up sites.
- Additional litigation: There may be litigation and litigation-related costs for PRPs that own or operate PFOA- and PFOS-contaminated sites, or that have been involved in the manufacture, distribution, or disposal of PFOA- and PFOS-containing products. In addition, PRPs may face litigation from other PRPs who will want to bring in other parties responsible for PFOA and PFOS contamination for contribution to site cleanup costs.
There may also be litigation challenging EPA’s decision to add PFOA and PFOS as hazardous substances, or the way that it is doing so. For example, this is the first time EPA is interpreting CERCLA Section 102(a) as precluding it from considering costs when designating a substance as hazardous under the Act, and it is also interpreting that it has the ability to add substances when there is uncertainty about some of their impacts. Given the wide-ranging implications of this proposal, interested parties should consider providing public comment to EPA.
Question: What steps can I take now if I’m worried about CERCLA liability?
Quick Answer: Companies should consider determining whether any of their properties still store or use materials containing PFOA or PFOS, determine what potential pathways there might be for these materials to be released into the environment, and develop strategies to either phase out such products or limit the potential scenarios in which they could be released.
Stay tuned for more analysis and recommendations from the PFAS Taskforce as a result of this far-ranging proposal.
The PFAS Taskforce
V&E’s PFAS Taskforce is dedicated to helping our clients navigate the emerging and complex law and regulations that may be used to address PFAS and related chemicals. By actively tracking and analyzing the different federal and state regulatory approaches to addressing PFAS — whether in water, groundwater, soil, and air — and engaging with the evolving scientific understanding of PFAS substances, we can help our clients build short- and long-term strategies to address potential liability, remediation, and litigation concerns regarding these emerging contaminants. Drawing upon the significant capabilities in our cross-office environmental team, V&E’s PFAS Taskforce is on hand to provide practical and tailored guidance for our clients as they prepare for the shifting PFAS landscape.
1 A “vessel” means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water while a “facility” means any building, structure, installation, equipment, pipe or pipeline, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock or aircraft, or any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.