EPA’s Proposed PFAS Rule Targets “Forever Chemicals”
EPA has released its long-awaited proposed rule designating two major PFAS compounds as “hazardous substances” under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), commonly known as the Superfund Statute. The proposed rule would affect not only companies and industries that currently use PFAS in their operations, but potentially also impose liability on past and present owners and operators for the investigation and cleanup of sites with historic PFAS contamination.
PFAS, or per- and polyfluoroalkyl substances, are a class of compounds that are used commonly in industrial processes and found in a wide range of consumer products. PFAS are commonly used in non-stick, waterproof, and stain-resistant fabrics and coatings, cleaning products, surfactants, paints, and polishes, and can be found in products ranging from pesticides, cosmetics, carpets and cookware to fast food packaging and leather goods. Also known colloquially as “forever chemicals” because they do not naturally break down in the environment, PFAS have been detected in the air, water, and soil, in crops and wildlife around the world. While research into the effects of acute or chronic PFAS exposure on human health is ongoing, EPA has stated that PFAS have been linked to numerous health concerns.
The proposed rule specifically targets two of the longest-used and most well-studied PFAS compounds—perfluorooctanoic acid (PFOA) and perfluoroctanesulfonic acid (PFOS). EPA’s proposed rule would classify PFOA and PFOS, as well as their salts and structural isomers, as “hazardous substances” under CERCLA section 102(a) and would set a tentative reportable quantity (RQ) for these compounds at 1 pound or more in a 24-hour period. Any person in charge of a vessel or an offshore or onshore facility will be required to immediately report PFOA or PFOS releases more than this quantity to federal, state, tribal, and local authorities under CERCLA’s Right-to-Know Act. Although many manufacturers have phased out their production and use of PFOA and PFOS over the past few decades, the persistence of these compounds in the environment means that human exposure via pathways such as soil and drinking water is ongoing, and the historic use of PFOA and PFOS may have resulted in their presence in numerous areas across the country.
The rule’s designation of PFOA and PFOS would also impact potentially responsible parties (PRPs) associated with PFOA and PFOS releases or contamination by allowing EPA to undertake short-term PFAS “removal” actions or designate PFAS-contaminated sites as “Superfund” sites for long-term “remedial” actions. Such PRPs may be required to address PFOA or PFOS releases themselves, or contribute to cleanup costs incurred by EPA, other agencies, or other private parties who undertake the cleanup of such sites.
The proposed rule further impacts federal agencies, who would be required to meet all property transfer requirements set forth in CERCLA section 120(h) prior to the sale or transfer of federally owned land, which include providing notice to potential purchasers if PFOS or PFOA has been stored, released, or disposed of on the property, and providing a covenant warranting that all necessary remedial action with respect to such substances has been taken prior to transfer.
EPA’s proposed rule is the latest development in an ongoing push by state and federal regulators to tighten restrictions on PFAS emissions and releases. Many states have already adopted legislation regulating PFAS levels in the environment and imposing liability on parties whose manufacturing activities cause or contribute to PFAS contamination. Others have enacted labeling and reporting requirements for PFAS products or banned the manufacture and sale of PFAS-containing products altogether. On the federal level, EPA announced drinking water health advisories for four major PFAS compounds earlier this year that set advisory levels in the parts per quadrillion for some compounds.
The proposed rule is widely anticipated to be controversial and EPA has specifically requested public comments on whether the Agency may consider cost as part of its decision to designate PFOA and PFOS as hazardous substances under CERCLA section 102(a). EPA has not formally published the proposed rule. Once published, comments must be received within 60 days of the date of the rule’s publication.
Please contact Steve Levine, David Topping, Sophie Gray or any member of Phelps’ Environmental team if you have questions or need advice or guidance.