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Practical Impacts of EPA’s Designation of PFAS as a Hazardous Substance
Effective on July 8, 2024, the U.S. Environmental Protection Agency’s (EPA) designated two per- and polyfluoroalkyl substances (PFAS), perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, (collectively PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA authorizes the federal government to assess potentially contaminated sites, clean up contaminated sites and respond to releases or threatened releases of hazardous substances, pollutants and contaminants. The designation of PFAS as hazardous substances will have significant ramifications for facilities that manufacture and use PFAS, causing releases into the environment, but also to landowners, prospective purchasers and environmental consultants. However, this designation does not change liability protections under CERCLA.
For close to 80 years, PFAS has been utilized in both consumer and industrial products such as clothing and firefighting foam. This widespread use has led to environmental releases of PFAS, contaminating the soil, water and air. Exposure to PFAS has been linked to numerous serious health impacts ranging from cancer and heart disease to birth defects and developmental damage in children.
In April, EPA issued “PFAS Enforcement Discretion and Settlement Policy Under CERCLA,” clarifying how EPA intends to use its enforcement discretion under CERCLA on matters involving PFAS. The memo notes that EPA will focus on holding those entities responsible for significant contribution to PFAS releases and does not intend to pursue specific entities when “equitable factors do not support seeking response actions or costs under CERCLA.”
Immediate Impacts of Designation
The most immediate impact of the designation is the requirement that facilities who release quantities of PFAS at or above the “reportable quantity of one pound” must report the release to the National Response Center within 24 hours. Additionally, the facility is required to immediately notify the applicable local and state emergency response teams. The facility is also required to provide notice of the release in local newspapers serving the affected area.
The designation also impacts the All Appropriate Inquires rule under CERCLA. PFAS is now required to be addressed under All Appropriate Inquires to fully comply with the rule and attain liability protection. This places an additional responsibility on landowners, prospective purchasers and environmental consultants to address the potential presence of PFAS and any potential remediation that may be required.
However, the presence of hazardous substances, such as PFAS, alone does not create liability under CERCLA, nor does designation of PFAS automatically confer liability. This designation enables EPA to shift responsibility for cleaning up PFAS contamination from the Superfund program to those responsible for contamination, via the “polluter pays” principle.
Parties Covered by the PFAS Enforcement Discretion Policy
If equitable factors to not support seeking contribution from certain entities under CERLCA, EPA will not pursue those entities. EPA specifically identified community water systems and publicly owned treatment works, municipal separate storm sewer systems, publicly owned or operated municipal solid waste landfills, publicly owned airports and local fire departments, and farms where biosolids are applied to the land, as entities that it does not intend to pursue for PFAS contamination. Moreover, EPA does not intend for the designation of PFAS to impose any requirements or liability on consumers using products containing PFAS, such as nonstick cookware.
Parties Covered by the PFAS Enforcement Discretion Policy
As stated above, EPA intends to hold those entities accountable that were significantly responsible for releasing and contributing to the spread of PFAS in the environment. These entities include those parties who used or made PFAS, as well as created items that contained PFAS, federal facilities and industrial entities.
Potentially Responsible Parties
EPA does have the authority to hold those entities accountable that were significantly responsible, referred to as potentially responsible parties (PRPs), for both response actions and expenses. This includes owners and operators of facilities (both current and past) and those who either arranged for the disposal or accepted hazardous substances transport.
Ultimately, EPA will determine if they pursue a party based on a variety of factors. Any exercise of enforcement discretion depends on a party’s full cooperation with EPA, including providing access to the site, providing requested information and not interfering with EPA’s efforts.
Should a party be designated as a PRP, EPA can seek reimbursement for the costs of response actions. Additionally, private parties may undertake cleanup of contaminated sites and then seek reimbursement from PRPs. Contributions from PRPs or settlements can limit the liability of PRPs.
Now that PFAS are considered hazardous substances, it may be prudent to determine if you might have any liability and what steps to take. For questions or assistance, please contact Ms. Rich Steinmetz.
Ms. Rich Steinmetz gratefully acknowledges the assistance of Anna E. Rowland, a summer associate, in preparing this article. Ms. Rowland is a third year law student at the University of Toledo College of Law.
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Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.