This is Part II of a three part series. Check out Part I, where our attorneys explain what PFAS is, and stay tuned for Part III, where our attorneys delve further into certain state regulations on PFAS.
On April 19, 2024, the EPA finalized a rule listing perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) as “hazardous substances” under CERCLA, opening a significant area in Superfund liability. As discussed below, the EPA can now investigate and address sites contaminated with PFOA or PFAS. The rule will have wide-ranging impacts, including new due diligence considerations in real estate transactions and a new era of Superfund enforcement and litigation.
Contemporaneous with the new rule, the EPA also issued a PFAS Enforcement Discretion and Settlement Policy Under CERCLA. The policy emphasizes that the EPA plans to target companies that have contributed to the manufacturing and release of PFOA and PFOS – including manufacturers, federal facilities, and other industrial parties – while not pursuing other potentially responsible parties such as municipal landfill operations, drinking water systems, and farmers.
The EPA will publish the rule in the Federal Register shortly, and thereafter the rule will take effect 60 days later.
As of March 22, 2024
Per- and polyfluoroalkyl substances (“PFAS”) continue to be one of the main focuses of regulators. The regulation of PFAS is rapidly evolving, and companies potentially impacted by PFAS regulation or liability need to stay apprised of how the regulatory regime may impact them. This part in the PFAS series focuses on some important federal regulatory developments.
Designating PFAS as Hazardous Substances under Superfund
In the coming months, EPA is expected to throw the door open to widespread and expensive PFAS cleanup by finalizing a rule that will create liability for responsible parties that disposed of or transported certain PFAS chemicals, and for past and present property owners of land contaminated with those PFAS. The proposed rule would list perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”), opening a significant area in Superfund liability. CERCLA is the primary federal environmental remediation – or cleanup – law. It imposes liability regardless of fault for contaminated property on a broad array of persons, such as past and present owners and operators of a site, persons who arranged for disposal of a hazardous substance at the site, and persons who transported a hazardous substance to the site.
Under the new rule, not only would regulators be able to identify and investigate new sites contaminated with PFOA or PFOS, but they would also be able to extend the investigation of active CERCLA cases and potentially reopen closed sites. This expansion of CERCLA liability will most certainly lead to more Superfund work, more responsible parties, and increased cleanup costs.
What makes this rule even more significant is that many states, including Rhode Island and Massachusetts, base their cleanup laws on CERCLA and incorporate CERCLA’s hazardous substances list. Designating certain PFAS as hazardous substances at the federal level could lead to corresponding regulations at the state level.
Once EPA promulgates the final rule, its sweeping impact will be felt on property owners, prospective property purchasers, operators, generators, and transporters related to sites with PFAS contaminants. Now is the time for companies to evaluate and, if possible, mitigate their PFAS-related liabilities. Prospective property purchases must also ensure that PFAS is considered in any due diligence.
PFAS Reporting Under the Toxic Substances Control Act
Another area where PFAS regulation is creating far reaching reputational and legal consequences is with new reporting requirements. In October 2023, EPA finalized reporting and recordkeeping requirements for PFAS under the Toxic Substances Control Act. By May 2025, any entity that manufactured or imported PFAS or PFAS-containing materials at any time since January 1, 2011, must report comprehensive data to EPA. The rule does not cover entities, like retailers, that solely process/distribute PFAS or PFAS-containing materials.
Companies should immediately determine whether they are subject to the reporting requirements, and smaller companies should keep in mind that the rule does not exempt de minimis manufacturers or importers. Although not required under the rule, EPA suggests that companies may elect to retain records of any decision concluding that they were not subject to the reporting requirements.
Once a company determines it is subject to the reporting requirements, it should begin taking steps to comply with the rule. The due diligence standard for PFAS reporting is extremely broad. Companies must report all information that is known or reasonably ascertainable by the company. EPA expects that companies will conduct reasonable inquiries both inside and outside their organizations, including inquiries to upstream suppliers or downstream users, and persons involved in research and development, import, production, and marketing of PFAS.
Companies may claim certain data as confidential business information, but must take specific steps to assert the confidentiality claim.
Next Steps
The PFAS federal regulatory landscape is constantly evolving, with new rules and requirements that companies must comply with and be aware of. Hinckley Allen’s team of experienced environmental attorneys continue to assist clients with navigating all PFAS regulations, both at the federal and state level. Please contact the authors if you have any questions regarding compliance with federal PFAS reporting rules, or concerns about potential PFAS liability.
