EPA Moves Towards Proposed Rule on CERCLA PFAS Listing
Earlier this month, the U.S. Environmental Protection Agency (“EPA”) submitted a proposed rule to the White House Office of Management and Budget (“OMB”) to designate perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). This marks the next step in the EPA’s efforts towards regulating and remediating per-and polyfluoroalkyl substances (“PFAS”) contamination around the country.
As detailed in EPA’s PFAS Strategic Roadmap and assuming OMB finalizes its review without significant delays, EPA intends to issue a proposed rule for public review and comment in the spring of 2022, with an eye towards issuing a final rule by the summer of 2023. The rulemaking process may be quite complicated, however, considering that EPA has never before designated any chemical as a CERCLA hazardous substance via the rulemaking process and given the political and media attention to these issues.
A final designation of PFOA and PFOS as CERCLA hazardous substances could have significant impacts, including:
- CERCLA National Priorities List (“NPL”) designation of new CERCLA Superfund sites where PFOA and PFOS contamination is present;
- New investigation and remediation requirements at existing Superfund sites;
- Efforts by EPA and state environmental agencies to “reopen” sites where remediation has already been completed in order to require the remediation of remaining PFOA and PFOS;
- New release reporting requirements under CERCLA and analogous state laws that rely on CERCLA’s hazardous substances list to determine when releases must be reported;
- New litigation brought by EPA, state agencies, private parties and PFAS-affected governmental entities looking to recover remediation costs or require that potentially responsible parties (“PRPs”) contribute to future remediation activities; and
- New litigation brought by drinking water utilities and wastewater treatment facilities seeking recovery from PRPs of significant long-term costs for PFAS treatment and disposal.
Potentially affected entities should be taking steps now to prepare for the EPA rulemaking process and eventual listing of PFOA and PFOS as CERCLA hazardous substances. For example, entities should:
- Assess current and historical uses and disposal practices of PFOA and PFOS products, including but not limited to the use of aqueous film-forming foams (“AFFF”) and other commonly used PFAS products, to determine potential risks for future CERCLA enforcement;
- Assess existing and closed sites where the entity is or was a PRP to determine potential risks that EPA or a state environmental agency may seek to require new or modified investigation and remediation requirements at those sites;
- Review EPA’s proposed rule and, if appropriate, participate in the process by submitting public comments and/or engaging in other stakeholder efforts; and
- Consider the implications of these potential hazardous substance listings when performing environmental due diligence and crafting agreement terms to help safeguard against potential future liability.
EPA’s efforts to develop and enforce regulations concerning PFAS are, of course, not limited to the CERCLA context, and the anticipated proposed rule is being developed in parallel with other efforts, including those under the Resource Conservation and Recovery Act (“RCRA”). Additional background information regarding PFAS regulations and policies, including a discussion on potential RCRA impacts, is available via our recent alert on the topic. If you have any questions concerning EPA’s proposed rulemakings or other PFAS questions, please contact a Clark Hill Environmental and Natural Resources attorney
The views and opinions expressed in this article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.
2024 Cybersecurity and Data Privacy Laws Summit Chicago
This event will include a panel discussion with expert industry leaders, offering a deep dive into the most pressing issues and advancements in AI and data privacy laws. You’ll gain critical knowledge and explore the implications of AI in legal and privacy domains so you can update your practices to reflect the highest standards of data stewardship.
WEBINAR: The Race to 2024: Politics and Social Media in the Workplace and Employer Rights.
Over the last several years, employers have seen and continue to see increased political activities from their employees at work and on social media platforms, including on business-related social media platforms, like LinkedIn. Managing employee expression causes unique challenges for employers and HR professionals, and in a General Election year, these challenges are likely to increase as the Presidential race, and other races, heat up.
Webinar: A Cookieless Future and Promise of PETs: A Primer on Privacy Enhancing Technologies
This webinar will explore PETs – we will define what they are, what problems PETs exist to address, and emerging PET standards including the National Institute of Standards and Technology (NIST) draft guidance on how to evaluate PET effectiveness. We will provide specific PET use cases and discuss how PETs may be utilized to address the phase out of third party cookies by certain browsers for purposes of targeted advertising.