In its latest effort to address per- and poly-fluoroalkyl substances (PFAS), the Environmental Protection Agency (EPA) has moved to designate two “forever chemicals” as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or Superfund law.
The proposed rule applies to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), clearing the way for EPA to enforce faster cleanup and to require potentially responsible parties to conduct remediation themselves.
“It’s a very significant step,” EPA Administrator Michael Regan said. “Under this proposed rule, EPA will both help protect communities from PFAS pollution and seek to hold polluters accountable for their actions.”
Current scientific research suggest PFAS pose a threat to human health, wildlife, and the environment. According to EPA, because they take an extraordinary amount of time to break down, bioaccumulation of these synthetic chemicals has become a widespread global problem.
EPA has been steadfast in its commitment to accelerate clean-up of these substances—releasing the EPA PFAS Roadmap in 2021, which provides a three-year framework for identifying exposure pathways and developing new methods to avert and remediate PFAS pollution. Proposing to designate certain PFAS as CERCLA hazardous substances is among several key actions included in the EPA PFAS Roadmap.
“Investigations are ramping up and EPA is showing no signs of slowing down on enforcement,” said The ELAM Group President and CEO James Hogan. “Addressing PFAS-impacted soil and groundwater requires a comprehensive environmental site assessment to better understand risk, cost analysis, and potential remediation options moving forward. My feeling is the growing list of regulatory agencies incorporating PFAS in their programs will only increase from this point forward.”
While designating PFOA and PFOS as hazardous substances under the so-called Superfund law would not ban the chemicals, if finalized, it would trigger required reporting of PFOA and PFOS releases. Access to that additional data would provide EPA the ability to enforce remediation and recover cleanup costs—opening the door to possible litigation from both public and private entities and could accelerate privately financed cleanups. In certain circumstances, the proposed rule could allow EPA to seek to recover cleanup costs from a potentially responsible party or to require such a party to conduct the cleanup in a short amount of time.
Hazardous Substances Designation Under CERCLA
CERCLA was enacted to promote timely cleanup of contaminated sites, to ensure responsible parties bear the cost of remediation, and to provide authority for responding to releases of pollutants, contaminants, and hazardous substances. A hazardous substances designation under CERCLA provides EPA further authority than allowed for pollutants and contaminants.
This designation would allow the agency to:
- Respond to PFOA and PFOS releases and threatened releases without an imminent and substantial danger finding—as currently required
- Require potentially responsible parties to address PFOA or PFOS releases that pose an imminent and substantial endangerment to public health or welfare or the environment
- Recover clean-up costs from potentially responsible parties
What Next?
Following a 60-day public comment period, EPA is expected to issue an Advanced Notice of Proposed Rulemaking seeking public input on whether to designate additional PFAS as hazardous substances under CERCLA.
A final rule regarding a CERCLA hazardous substances designation for PFOA and PFOS is expected in August 2023.
Establishing a proactive plan for moving forward under these intense regulatory obligations can help manage environmental liabilities and potentially reduce claim risk before final rules are issued.
Questions? Contact James Hogan at The ELAM Group: [email protected]
