EPA Releases Pre-Publication Copy of Proposed PFAS CERCLA Listing

On Friday, August 26, the U.S. Environmental Protection Agency (“EPA”) issued a pre-publication version of its long-anticipated proposed rule, which would designate two per- and polyfluoroalkyl substances (“PFAS”)—namely perfluorooctanoic acid (“PFOA”) and perfluorooctanesulofonic acid (“PFOS”) including their structural isomers—as “hazardous substances” under the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or the “Superfund” law). The proposed rule marks the first-ever rulemaking effort by EPA to designate new substances as hazardous under CERCLA, and it (along with any future PFAS designations) will likely have significant regulatory impacts across the country once finalized.

Among other impacts, the final rule:

• Would impose reporting obligations for any releases of PFOA and PFOS in quantities greater than one pound over a 24-hour period;
• Would expand regulatory authority for EPA and other entities to require cleanup without demonstrating an imminent and substantial endangerment;
• Could result in the designation of new CERCLA Superfund sites where PFOA and PFOS contamination is present;
• Could trigger new investigations and remediation requirements at preexisting Superfund sites; and
• Could lead to attempts by EPA or a state environmental agency to “reopen” sites where remediation has already been completed in order to require the remediation of remaining PFOA and PFOS.

In addition to any litigation over the issuance of the final rule itself, the final listing is also likely to trigger new CERCLA cost recovery and contribution litigation brought by EPA as well as private parties or other governmental entities looking to recover remediation costs or require that potentially responsible parties (“PRPs”) contribute to future remediation activities.

EPA also issued a press release on the same day, indicating that the proposed rule will be published in the Federal Register within the next several weeks and that such publication will trigger a 60-day comment period. Given the significance of this proposed rule, though, it would certainly be a surprise if that timeframe is not extended. The rulemaking process will also likely be further complicated by the Office of Management and Budget’s recent decision to designate the proposed rule as “economically significant,” which triggers requirements for EPA to conduct a regulatory impact analysis and support a position that the rule is the most cost-effective means of accomplishing its goals.

Additionally, while the anticipated proposed rule will only address PFOA and PFOS, EPA also explained that it is developing and intends to issue a separate advance notice of proposed rulemaking (ANPRM) “seeking comments and data to assist in the development of potential future regulations pertaining to other PFAS designation as hazardous substances under CERCLA.”

Next Steps

Potentially affected entities should be taking steps now to prepare to address the proposed rule and the eventual listing of PFOA and PFOS as CERCLA hazardous substances. For example, entities should:

• Review EPA’s proposed rule and/or consult with counsel concerning its impacts and, if appropriate, participate in the process by submitting public comments individually and/or engaging in other stakeholder efforts (e.g., trade associations) to do so;
• Assess current and historical uses and disposal practices of PFOA and PFOS products, as well as other PFAS products, which might potentially be included in future EPA rulemaking efforts, to determine potential risks for future CERCLA enforcement and whether it is worthwhile to prepare to submit comments and data to EPA once it issues the ANPRM with respect to additional PFAS chemicals;
• 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; 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. More information on this topic was covered during a recent Clark Hill webinar.

EPA’s efforts to develop and enforce regulations concerning PFAS are not limited to the CERCLA context, and the proposed rule has been developed in parallel with other PFAS-related efforts by EPA. Additional information concerning recent developments related to these efforts is available via our midyear update on the topic. If you have any questions concerning EPA’s proposed rule or other PFAS issues, please contact a Clark Hill Environmental and Natural Resources attorney.

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The views and opinions expressed in the article represent the view of the authors 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.