The United States Environmental Protection Agency (EPA) in July of this year designated two PFAS (perfluoroalkyl and polyfluoroalkyl substances) chemical types as “hazardous substances” under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA, better known as the Superfund liability law), which has had a major impact in the ever-evolving environmental regulatory arena. PFAS substances are commonly referred to as “forever chemicals” because, according to the EPA, they are difficult to break down and can accumulate and persist in the human body for long periods of time. Because PFAS chemicals have been manufactured and used in a large variety of products for decades, the EPA states that they are found in water, air, fish and soil at locations around the globe. The Superfund designation is part of a larger EPA strategy to address PFAS contamination, including promulgation in April of this year of new and very strict standards for PFAS in drinking water. In addition, there has been movement by several states to regulate PFAS, including some that are imposing bans on use of PFAS chemicals in a growing range of products.
The impacts of the evolving PFAS regulatory situation are many, but a few examples include:
1) Phase II Environmental Site Assessments now need to examine for potential PFAS contamination in soil and ground water to assess for potential liability under the new CERCLA listing;
2) local drinking water systems that do not meet the new standards for PFAS now need to spend significant amounts of capital to address and remove PFAS in the local water supply;
3) municipal and industrial waste management facilities, and municipal wastewater treatment systems, now need to address PFAS contamination in the waste and wastewater delivered to them, rendering them as “passive receivers” due to the ongoing existence of PFAS in these waste streams.
These passive receivers now have potential liability for how they handle the PFAS substances and must ensure proper removal and management of the substances to prevent releases to soil and groundwater, potentially at significant new expense. For example, wastewater treatment facilities that generate biosolids are now increasingly likely to be regulated by state environmental regulators regarding land spreading of the biosolid residuals of the treatment process that contain PFAS substances. Another example is municipal and industrial waste landfills that currently send their leachate to wastewater treatment facilities potentially becoming unable to so because such facilities that do not have the ability to remove the PFAS substances and thus needing to install their own removal and treatment technologies. At the same time, there is continued development of technologies to remove and destroy PFAS substances; some of these technologies are already in use.
There is now more uncertainty regarding the trajectory of the EPA’s regulatory approach to PFAS as the incoming Trump administration has prioritized deregulation in the environmental arena. The EPA’s recent PFAS regulatory actions may be among the first to be deregulated. In addition, there are multiple legal challenges to the recent EPA PFAS regulations, as well as legal challenges to other state and federal actions related to the regulation of PFAS, the outcome of which is still to be determined.
Considering the potential liability and significant compliance costs associated with regulatory actions related to PFAS substances, it will be important for the regulated community to closely monitor potential deregulation at the federal level, as well as the potential for additional regulatory actions at the state level.