Perfluoroalkyl substances (PFAS) are a group of thousands of human-made chemicals that are resistant to heat, water, oil, and grease. These properties have made them popular for many decades for use in waterproof products, non-stick cookware, stain-resistant fabrics, food packaging, cosmetics, and personal care products. Because PFAS do not easily break down in the environment, they have been called “forever chemicals.” PFAS also accumulate in the bodies of humans and animals, as well as in the environment. Studies have linked PFAS to a range of human health concerns, including cancer and reproductive harm. Investigation, cleanup, and disposal of PFAS is extremely expensive, making liability for cleanup a very serious concern for property owners.
The Oregon Department of Environmental Quality has begun the rulemaking process to update the definition of Oregon hazardous substances to include six PFAS: PFOA, PFOS, PFHxS, PFNA, HFPO-DA (GenX) and PFBS). These PFAS are already regulated under the federal Safe Drinking Water Act; however, only PFOA and PFOS have been designated as hazardous substances under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA aka Superfund). CERCLA provides that current and prior owners and operators of contaminated sites, as well as arrangers and transporters of hazardous substances, are liable for cleanup of those hazardous substances. Oregon’s Cleanup Act is modeled on CERCLA and provides for similar liability.
The proposed DEQ rule looks to include these six PFAS compounds in the list of hazardous substances addressed by the Oregon Cleanup Act. They would be incorporated into the DEQ Cleanup Program’s process for addressing environmental contamination, including risk assessment and cleanup actions. The DEQ will be required to generate data characterizing the locations and magnitudes of release of these PFAS, as well as the risks they pose to human health and the environment. Because PFAS are so ubiquitous in the environment, it is likely that far more sites will become subject to investigation and cleanup. This will also mean that, under the Oregon Cleanup Law, the owners and operators of property contaminated with any of these six PFAS (or anyone who caused or contributed to the contamination) would be liable for the investigation and cleanup. Under federal law, liability only extends to contamination for PFOA and PFOS.
Public comment is open until April 25, 2025 at 4:00 PM.
