On September 6, 2022, the U.S EPA’s long-awaited proposed rule to list perfluorooctanoic acid (PFOA) and perluoroocanesulfonic acid (PFOS) as CERCLA hazardous substances was published in the Federal Register (Proposed Rule). This triggers a 60-day public notice and comment period. As the first compounds ever proposed for hazardous substance listing under Section 102(a) of CERCLA, and as the first two of potentially thousands of related “forever chemicals” to be considered by U.S. EPA, it is appropriate to evaluate the roads this element of U.S. EPA’s PFAS Strategic Roadmap may be leading us down. Whether due to the increase in social media or the ubiquity of PFAS in household products, PFAS has captured the general public’s attention in a manner rarely seen for CERCLA substances.
While Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) authorizes the U.S. Environmental Protection Agency (U.S. EPA) to promulgate regulations designating compounds as “hazardous substances,” U.S. EPA has never done so until now. However, PFOA and PFOS exposure has been linked to alleged effects on the immune system, cardiovascular system, human development, and cancer at extremely low levels. Human epidemiology studies resulted in U.S. EPA’s release of interim updated drinking water health advisories in June 2022 of 0.004 parts per trillion (ppt) for PFOA and 0.02 ppt for PFOS, replacing the prior 70 ppt levels established in 2016 with levels below current detection limits. PFOA and PFOS are ubiquitous compounds, historically used not only in firefighting foams and industrial applications, but also in a wide variety of consumer products to inhibit the effects of water, grease, and stains. These compounds were useful, in part, because they are resistant to breaking down. They have been found in air, water, soils, domestic and wild animals, and in a high percentage of the U.S. population. Therefore, U.S. EPA has determined that their release into the environment “may present substantial danger to the public health or welfare or the environment.” CERCLA Section 102(a).
What Would the Listing Trigger?
The default reportable quantity for release reporting under Section 102(b) of CERCLA is one pound within a 24-hour reporting period, and the proposed rule confirms that a one-pound reportable quantity will apply to releases of PFOA and PFOS absent a new rulemaking. Though the principal manufacturers of PFOA and PFOS phased out their production in the early 2000s, the rule may trigger reporting obligations for industries where PFOA and PFOS remain present in materials previously manufactured. The proposed rule includes a non-exhaustive list of 21 industries which it anticipates will be potentially affected by this listing, including textile mills, paper mills, landfills, and wastewater treatment plants.
Perhaps more important than tracking new releases, the listing is anticipated to substantially increase U.S. EPA’s ability to respond to historical releases of PFOA and PFOS. U.S. EPA will be able to require potentially responsible parties to address PFOA or PFOS that poses an imminent and substantial endangerment. U.S EPA and private parties will be able to seek cost recovery for addressing PFOA and PFOS impacts. Additionally, the listing will trigger notifications and assurances of the completion of all necessary remedial action in conjunction with the transfer of federally-owned property if PFOA or PFOS was stored, released, or disposed of at the property. CERCLA Section 120(h). DOT will also be required to list these substances as DOT hazardous materials.
U.S. EPA will likely include PFAS in its five-year reviews of historical CERCLA sites in addition to newer sites, and the listing of PFOA and PFOS may provide U.S. EPA with the ability to reopen existing CERCLA settlements. It is not yet clear what impact the listings may have on statutes of limitations periods triggered by past settlements with U.S. EPA. Still, if U.S. EPA identifies PFOA or PFOS as a basis for reopener, that should allow participating parties to argue that the settlements did not resolve their CERCLA liabilities, such that they may pursue contribution and cost recovery claims. Certainly, the regulated community can expect that these listings will lead to an increase in CERCLA administrative and civil actions, potentially to rival the late 1980’s and early 1990’s.
Does Cost Matter?
On August 12, 2022, the Office of Management and Budget’s (OMB’s) approval of the Proposed Rule’s included a determination that this proposed rulemaking is an economically significant action, requiring U.S. EPA to conduct a regulatory impact analysis and to include consideration of the Proposed Rule’s potential direct and indirect costs and benefits before it can take effect. In the Proposed Rule, U.S. EPA takes the position that because cost was not designated as a part of the standard for determining whether to list a hazardous substance pursuant to Section 102(a), it is neither a required nor permissible factor in determining whether PFOA and PFOS should be listed. Instead, the Proposed Rule suggests that cost considerations can be determined in evaluating appropriate response actions. Moreover, U.S. EPA noted that the only automatic private party obligation flowing from the listing was the obligation to report releases, estimated at an annual cost of $370,000. The OMB’s determination indicates that the Proposed Rule is anticipated to impose costs of $100 million or more annually. U.S. EPA has prepared an economic analysis of the potential costs and benefits, which will be posted in the docket for this action, and U.S. EPA is seeking comments on its interpretation of the need for and manner of considering such costs.
Any Exit Ramps?
CERCLA offers few exemptions from liability for the release of hazardous substances, but some existing exemptions may be particularly interesting in the context of the PFAS listings and their impact on historical discharges. These include exemptions for federally permitted releases, such as discharges pursuant to water and air permits, and the exemption for normal fertilizer application. Owners and operators of landfills and wastewater treatment works are lobbying for further exemptions from CERCLA liability for PFAS on the basis that they merely receive PFAS in wastes from others, and controls are best placed on those generating PFAS-containing waste and wastewater. Otherwise the costs of cleanup will be placed on the public, in opposition to the “polluter pays” philosophy of CERCLA. When passed by the House in July 2021, H.R. 2467, which would require the U.S. EPA Administrator to list PFOA and PFOS as hazardous substances and evaluate all other PFAS for listing, did not include such exemptions. However, the bill has yet to be taken up by the Senate, so these industries remain hopeful. Whether its interest in PFAS may enhance or soften the general public’s reaction to the anticipated costs of addressing it has yet to be determined.
In the meantime, the PFAS Strategic Roadmap continues to drive on, expanding the regulation of PFAS across all environmental programs. U.S. EPA is:
- Pursuing national primary drinking water standards for PFOA and PFOS;
- Finalizing a risk assessment for PFOA and PFOS in biosolids;
- Regulating a broad range of PFAS under other agency programs;
- Considering further CERCLA listings; and
- Determining how PFAS should be incorporated into environmental justice efforts.
Clearly, the regulation of these “forever chemicals” is here to stay.
About the Author:
Sharon Newlon is a Member and Environmental, Energy & Sustainability Practice Group Co-Chair in Dickinson Wright’s Detroit office. She can be reached at 313-223-3674 or email@example.com and her firm bio can be accessed, here.
 87 FR 54415, September 6, 2022.
 Proposed Rule, Id. at 54417, citing CDC (2021) National Health and Nutrition Examination Survey; NHANES questionnaires, datasets, and related documentation. Centers for Disease Control and Prevention. https://wwwn.cdc.gov/nchs/nhanes/Default.aspx
 Unlike the initial list of CERCLA hazardous substances, the new listings will not trigger an obligation to report facilities at which PFOA and PFOS have been stored, treated or disposed in the past. See CERCLA Section 103(c).
 From 1990 to 2018, federal land ownership declined by 31.5 million acres. CRS (2020) Federal Land Ownership: Overview and Data. Congressional Research Service. https://sgp.fas.org/crs/misc/R42346.pdf
 Proposed Rule, 87 FR 54422, p. 28.
 Proposed Rule, Id. at 54422, 39.
 Proposed Rule, Id. at 54423.
 CERCLA Section 101(10). PFAS have been found in fertilizers, including those made from wastewater plant biosolids. See, e.g., Sludge in the Garden: Toxic PFAS in Home Fertilizers Made from Sewage Sludge, Ecology Center and Sierra Club, May 25, 2021.
 CERCLA Section 101(22)(D).
 U.S. EPA added 172 PFAS compounds to the Toxic Release Inventory list in 2020, adding 3 more in 2021. Proposed Rule, 87 FR 54430. U.S. EPA is also requiring public water systems to sample for 29 PFAS (and lithium) under its fifth Unregulated Contaminant Monitoring Rule. https://www.epa.gov/dwucmr/fifth-unregulated-contaminant-monitoring-rule
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