The authors analyze a proposed rulemaking that could expose a wide range of industries and governmental entities to potential Superfund cleanup liability for releases of PFAS products.
Consistent with the PFAS Strategic Roadmap1 adopted by the U.S. Environmental Protection Agency ("EPA"), the EPA has made its first substantive move toward adding PFAS (per- or polyfluoroalkyl substances) to the list of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or "Superfund").2
On September 6, 2022, the EPA published a proposed rule3 designating two PFAS legacy chemicals—perfluorooctanoic acid ("PFOA") and perfluorooctanesulfonic acid ("PFOS"), including their salts and structural isomers—as CERCLA hazardous substances.
The EPA is proposing to list PFOA and PFOS as hazardous substances pursuant to CERCLA Section 102(a) because "the totality of evidence about PFOA and PFOS described here demonstrates that they can pose substantial danger to public health or welfare or the environment."4
The proposed rulemaking could expose a wide range of industries and governmental entities to potential Superfund cleanup liability for releases of PFOA and PFOS, including:
- PFAS manufacturers or importers,
- PFAS processors,
- Manufacturers of products containing PFAS,
- Downstream product manufacturers and users of PFAS products, and
- Waste management and wastewater treatment facilities.
Interested parties were given until November 7, 2022, to comment on the proposed rulemaking.5 The EPA plans to review the public comments it receives and respond when issuing the final rule in August 2023.6
Impacts of the Proposed Rule
Liability for Response Costs Under CERCLA Section 107
CERCLA establishes liability for owners, operators, arrangers, and transporters for the release or threatened release of a hazardous substance that caused response costs.7 When the listing of PFOA and PFOS is finalized, a party responsible for the release or threatened release of PFOA or PFOS becomes a liable party at a facility. This means the party could be subject to:
- A contribution claim or cost recovery claim from an existing party under Sections 113 or 107, respectively;
- A cost recovery claim from the EPA if the EPA performs the cleanup itself; or
- A unilateral order for the abatement of an "imminent and substantial endangerment to the public health or welfare or the environment" under Section 106.
While the EPA has stated8 that it plans to focus enforcement of the proposed rulemaking on entities that have manufactured and released significant amounts of PFOA or PFOS into the environment, it is not required to exercise such constraint—nor is it guaranteed that such a commitment would be kept by key officials appointed by a subsequent administration to oversee EPA enforcement. The EPA has the discretion to pursue cost recovery claims or to enter a unilateral order with any potentially responsible party.9 Private parties also may seek contribution or cost recovery from any potentially responsible party, including only minor parties.
Notably, CERCLA does not impose liability on manufacturers of "useful products" who did not arrange for the disposal of their products at a particular site.10
Cleanup Standards for PFOA and PFOS
There is uncertainty regarding what cleanup standards would apply to a CERCLA cleanup of PFOA or PFOS contamination. Earlier in 2022, the EPA reduced its lifetime health advisory levels for PFOA and PFOS in drinking water. The new advisory levels are 0.004 ppt (parts per trillion) for PFOA and 0.20 ppt for PFOS.11 These levels were a substantial reduction from the EPA's previous advisory levels of 70 ppt for both PFOA and PFOS (set in 2016),12 and face legal challenges from industry claiming that the levels lack scientific integrity and that existing analytical methods cannot detect PFOA and PFOS at that level in drinking water. the EPA has announced that it will propose a Maximum Contaminant Level for PFOA and PFOS under the Safe Drinking Water Act by the end of 2022. The EPA anticipates finalizing such a rule by the end of 2023.
Further reinforcing this complexity, state regulations provide an inconsistent patchwork of regulatory levels for PFOA and PFOS, with some states imposing binding cleanup standards, some states providing nonbinding guidance, and some states lacking any formal or informal guidance. If the proposed designation of PFOA and PFOS as hazardous substances is finalized, the cleanup standards at Superfund sites may be defined on a site-by-site basis until clear standards are created.
Allocations at Existing Sites
Adding PFOA and PFOS as hazardous substances carries potential implications for CERCLA allocations.
First, adding new contaminants potentially brings in new parties to existing sites, which reduces the share for the existing parties that did not dispose of PFOA or PFOS. While CERCLA does not require the EPA to bring in additional parties, EPA guidance calls on the agency to identify and involve the largest feasible number of potentially responsible parties. In addition, once a new contaminant of concern is listed and new parties become liable or potentially liable, the existing parties may make contribution claims against those new parties pursuant to CERCLA Section 113.
Second, an existing party's share of the cost of the remedy could increase if they have disposed of PFOA or PFOS at the site, in addition to the other contaminants for which they are liable or potentially liable. Conceivably, a party that has no connection to PFOA or PFOS at a site where the substances are identified could find its relative share of site response costs decrease.
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