I. Designation of PFAS as Hazardous Substances

On September 6, 2022, the Environmental Protection Agency (EPA) designated two per- and polyfluoroalkyl substances (collectively, PFAS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as the Superfund law.¹ PFAS are widely used anthropogenic chemicals, often referred to as “forever chemicals” because of how long they persist in the environment. PFAS are found in all environmental media across the country.²

Historically, federal regulation of PFAS has been largely limited to non-enforcement mechanisms, such as providing health advisories about PFAS concentration levels in drinking water or requiring manufacturers to notify EPA about the manufacture of PFAS chemicals or products containing such chemicals.³ These types of federal health advisories are not legally binding, though state governments can use them to set their own PFAS drinking water standards.

EPA’s recent designation of two PFAS chemicals—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under CERCLA marks a significant, though not unexpected, shift in the federal government’s approach to regulating PFAS. Generally speaking, CERCLA provides the federal government with statutory authority to investigate, monitor and respond to hazardous substances that have been released, or are under threat of release, into the environment.

CERCLA also provides an enforcement mechanism for the government and private entities to hold parties responsible for the cleanup costs if they are found to be liable for the release of substances (a) specifically designated as hazardous substances under CERCLA or (b) determined to present an “imminent and substantial danger to the public health or welfare.” While it was possible to engage the CERCLA process to address PFAS contamination prior to EPA’s formal designation by establishing that PFAS contaminants posed an “imminent and substantial danger,” in practice that was unlikely to occur; it will become much easier to establish liability for the release of PFAS under CERCLA’s strict liability regime for contaminants designated as hazardous substances.

II. Potential Impacts of Finalized PFAS Designations

EPA is currently accepting comments on its designation of PFOA and PFOS as hazardous substances and anticipates publishing a final designation in the summer of 2023.⁴ The final designation will have a number of immediate implications under CERCLA’s liability framework. For example, any person or entity that releases these chemicals above permitted levels would face strict notification requirements.⁵ Additionally, EPA would gain additional authority to order response and remediation actions of sites around the country where these chemicals are located, and to hold entities that contributed to their release liable for the cleanup costs. Private parties could also more easily bring cost recovery actions for PFOS and PFOA cleanups.

The final designation of PFOS and PFOA may also have various and wide-reaching effects beyond those statutorily imposed by CERCLA, including those described below.

Contaminated Sites. PFAS chemicals’ myriad historical uses have led to their widespread presence across the country. Indeed, as of June 2022, there were more than 2,800 locations in the United States known to contain PFAS.⁶ Given PFAS’s near-ubiquitous presence, a final designation of PFOA and PFOS could significantly increase the number and duration of remediation activities at closed, active and new Superfund sites. For example, the designation of PFAS could lead to the reopening of previously closed Superfund sites due to the presence of these chemicals. For existing Superfund sites nearing closure, these designations could push back the timeline of remediation projects, add significant costs and testing protocols, require new treatment technologies, and prolong site monitoring. And, of course, adding PFOA and PFOS to the list of CERCLA hazardous substances could lead to the designation of entirely new Superfund sites based on the presence of these chemicals.

Potentially Responsible Parties (PRPs). The designation of PFOA and PFOS could also have significant impacts on the businesses and entities responsible for their release. PRPs could include manufacturers and importers of PFOA and PFOS, businesses that use or manufacture products containing these chemicals, and the waste management and wastewater facilities that treat them. All potential PFAS PRPs would face a heightened risk of government enforcement and private litigation. The risks for PRPs are particularly acute any time CERCLA applies, as multiple parties may be held jointly and severally liable for 100 percent of the cleanup costs at designated sites, even if the release of PFAS occurred decades ago and contributed only marginally to the present contamination.⁷ Moreover, even if a PRP ultimately is not found responsible, it still faces the risks and costs associated with responding to (and possibly litigating) claims, as well as addressing heightened public awareness of PFAS issues.

The designation of PFOA and PFOS also creates unique risks for entities that own or operate facilities on PFAS-contaminated sites. Airports, for example, may face particular challenges because many of them have historically used foams with high concentrations of PFAS to fight fires and prevent leaks in storage tanks and other fuel storage areas.⁸ Similarly, owners or operators of agricultural businesses may face similar risks if their property is or was treated with pesticides containing PFAS.⁹ These and other site owners and operators may need to reassess the value of their properties, estimate the legal and financial vulnerabilities associated with them, align appropriate operational and legal responses, and coordinate effective communications and government affairs strategies to address public fallout that could arise from a Superfund designation.

Federal and State Regulatory Framework. Due to the historical absence of federal regulations governing PFAS, many state governments enacted their own PFAS regulations. Indeed, right now, there are over 100 PFAS-related regulatory policies in place across 23 states.¹⁰ Some states have set maximum contaminant levels (MCLs) in drinking water for PFOS and PFOA, while others have banned PFAS in firefighting foam and consumer products like food packaging, and still others have banned all uses of PFAS other than those necessary for public health.¹¹ Navigating this patchwork of state PFAS regulations can be costly for businesses and site owners, including due to varying PFAS monitoring and notification requirements, statutes of limitations specific to PFAS-related injuries, and the possibility of different MCLs. Accordingly, while the introduction of PFAS chemicals to the CERCLA hazardous substances list certainly creates heightened legal risks, it may also pave the way for a more uniform and predictable application of PFAS regulations and enforcement.

Other PFAS Chemicals. Finally, while PFOA and PFOS are two of the most widely used PFAS, there are thousands of other PFAS chemicals present throughout the United States. The EPA has indicated it intends to add additional PFAS chemicals to the CERCLA hazardous substances list. Any such additional PFAS designations could further exacerbate the effects and risks discussed above.

Footnotes -

1. Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 87 Fed. Reg. 54415 (proposed Sept. 6, 2022) (to be codified at 40 C.F.R. pt. 302).
2. PFAS Explained, EPA (Apr. 28, 2022), https://www.epa.gov/pfas/pfas-explained.
3. See, e.g., 40 C.F.R. § 721.9852(b) (“PFAS Chemicals Subject to Reporting”); EPA, FACT SHEET PFOA & PFOS DRINKING WATER HEALTH ADVISORIES 1–2 (Nov. 2016), https://www.epa.gov/sites/default/files/2016-06/documents/drinkingwaterhealthadvisories_pfoa_pfos_updated_5.31.16.pdf.
4. Notice of Proposed Rulemaking: Designating PFOA and PFOS as CERCLA Hazardous Substances, EPA (Aug. 2022), https://www.epa.gov/system/files/documents/2022-09/Overview Presentation_NPRM Designation of PFOA and PFOS as CERCLA Hazardous Substances.pdf.
5. Hazardous Substance Designations and Release Notifications, EPA (Aug. 13, 2022), https://www.epa.gov/epcra/hazardous-substance-designations-and-release-notifications#cercla103.
6. PFAS Contamination in the U.S., Env’t Working Grp. (June 8, 2022), https://www.ewg.org/interactive-maps/pfas_contamination/.
7. Superfund Liability, EPA (July 25, 2022), https://www.epa.gov/enforcement/superfund-liability.
8. See, e.g., Jacobs Consulting, “What Airports Need to Know About Potential PFAS Liabilities” (July 22, 2020), https://www.jacobs.com/newsroom/news/what-airports-need-know-about-potential-pfas-liabilities.
9. Per- and Polyfluoroalkyl Substances (PFAS) in Pesticide and Other Packaging, EPA (Sept. 14, 2022), https://www.epa.gov/pesticides/pfas-packaging.
10. PFAS, Safer States (last visited Sept. 20, 2022), https://www.saferstates.com/toxic-chemicals/pfas/.
11. See, e.g., id.; see also Affirming National Leadership Role, New Jersey Publishes Formal Stringent Drinking Water Standards for PFOA and PFOS, NEW JERSEY DEP’T OF ENV’T PROTEC. (June 1, 2020), https://www.nj.gov/dep/newsrel/2020/20_0025.htm; SAFER STATES & MIND THE STORE, PFAS Action: Governments, Retailers, and Brands are Stepping Up 1 (2022), https://www.saferstates.com/assets/Resources/PFAS-Momentum-Factsheet-5.9.2022.pdf.