On September 8, 2022, we published a blog, “Potential Immense Impact of PFOA and PFOS as CERCLA Hazardous Substances.”  As we pointed out, there are many uncertainties related to the proposed designation of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).

The proposed action has both technical and legal considerations.  Below we share some of the comments published recently by lawyers who have been weighing in on this issue.

PFOA and PFOS CERCLA Listing – Legal Considerations

The excerpts below are from a blog by the law firm Kilpatrick Townsend:

“The designation of PFOA and PFOS as CERCLA hazardous substances raise a multitude of concerns.  Most commentary focuses on the very real impacts such a designation could have on investigation and remediation obligations at CERCLA National Priority List (NPL) sites.  These concerns include whether such designation could result in reopening of closed NPL sites, identification of new NPL sites, and flagging of additional potentially responsible parties (PRPs).  In addition, regardless of whether or not a site is listed on the NPL, investigation and remediation obligations for any site where PFOA and PFOS are detected are likely to become more complicated and more expensive.”

CERCLA Reporting Obligations

As a CERCLA hazardous substance, the proposed regulation may trigger CERCLA emergency release reporting obligations under 40 CFR 302.6.  To that end, the law firm writes, “Significantly, rather than use its technical and regulatory expertise to determine what amount of PFOA and PFOS released to the environment poses an actual and immediate threat to human health and the environment, EPA ducks that judgment and proposes the default RQ (reportable quantity) of one pound or more in a 24-hour period.  EPA, in the Proposed Rule’s discussion of the Paperwork Reduction Act and the Regulatory Flexibility Act, downplays the actual economic impacts of this potential reporting obligation noting that the number of reportable releases ranging from 0 to 660 with a total annual cost of $370,000 per year and an estimated cost to prepare a report of $561.  However, the actual impacts are more nuanced and uncertain and many questions remain to be evaluated.”

Continued Use of PFOA and PFOS

“The Proposed Rule indicates that the manufacture of PFOA and PFOS in the United States is very limited, noting that the ‘principal worldwide manufacturers of PFOA and PFOS and related chemicals phased out their production in the early 2000’s’; however, PFOA and PFOS continue to be imported and used by a number of United States manufacturers and industries. PFOS and PFOS may continue to be used in firefighting suppressants (typically referred to as Aqueous Film Forming Foams [AFFF]). Significantly, PFOA and PFOS are also found in multitudes of consumer products such as high performance/water performance clothing, fast food wrappers and containers and even something as insignificant as dental floss.”

Potential Scenario

Was there a release to the environment?  The law firm poses the question, “What (would) result if a truck carrying a load of coated fast food containers falls off a bridge into a creek?  Could someone claim that those hamburger containers in the creek was a release to the environment?  Should someone know the quantity of PFOA and PFOS in these hamburger containers?  Should someone know whether the hamburger containers can leach PFOA or PFOS into the creek?”

CERCLA Best Fit to Regulate PFOA and PFAS?

Finally, they draw a conclusion similar to what we wrote when we suggested that shoehorning this issue into the existing regulatory framework does not seem to make sense.  They write, “These issues are not simply technical issues but illustrate the poor policy judgment of a federal agency when a new substance is simply added to a 42-year-old program with all of its highly developed procedures, regulations, guidance documents and case law decisions simply for apparent political expediency.  EPA wants to ‘do something’ on this watch with PFAS chemicals, but the reporting obligation ambiguities alone, which are now triggered, demonstrate the lack of due process notice of obligations that the regulated community and communities potentially affected deserve and need.”

Far Reaching Effects

The concerns over the pending listing of PFOA and PFOS as CERCLA hazardous substances are many. The concerns include transactional (environmental due diligence), reporting obligations, reopening previously “closed” remediation sites, modification of existing remediation plans, and lawsuits by environmental groups – to name a few.

The comment period on the proposed regulation is closed, and now the regulated community waits to see if the comments that were submitted will lead to any modifications on the final rule.  You can see the comments that have been submitted by individuals, trade groups, municipal governments, and more here.

We will continue to monitor this important development.  In the meantime, if you need assistance with a PFAS issue, feel free to contact us, we have a lot of hands-on experience (assessment, remediation, litigation support) in addressing PFAS.

We also have additional information on our PFAS Resources Page.

This blog was drafted by Alan Hahn.  Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management.  He has worked in environmental management for 45 years.  He has written hundreds of blogs and articles.  His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

 This blog was reviewed and edited by Matthew Schroeder, M.S., P.E.  Matt is a senior environmental engineer at Dragun Corporation.  Matt has 30 years of experience with soil and groundwater remediation, vapor intrusion, and more recently with PFAS. Specific to PFAS, Matt has completed the ITRC PFAS Training, is a member of the Michigan PFAS Action Response Team, Treatment Technology Roundtable, and the Michigan Manufacturers Association PFAS Work Group, and he has participated in the PFAS Experts Symposium.  Matt is a frequent speaker, author, and expert witness.  See Matt’s bio.

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