In March, the EPA indicated that it will regulate certain per- and polyfluoroalkyl substances (PFAS), namely PFOA and PFOS, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), otherwise known as the Superfund Law. Including PFAS as hazardous substances under CERLA is long overdue. Various passive “receivers” of PFAS wastes, such as water treatment and waste disposal companies, have lobbied the executive branch and various representatives to avoid liability for PFAS contamination that those interests did not create. This is in addition to lobbying by the chemical industry as the manufacturer of the PFAS contamination which have long been an obstacle to PFAS regulation.
EPA Gets Tools to Combat PFAS Contamination
The listing of PFOA and PFOS as hazardous substances under CERCLA, which is expected to be finalized in 2023, would provide the US EPA with additional tools desperately needed to combat the growing PFAS contamination problem in this country. Including these chemicals would trigger considerable strengthening of requirements that companies notify authorities of PFAS releases from a vast range of facilities. On top of the strengthened reporting requirements, EPA would be able to force responsible parties to remediate PFAS contamination or bring suit against responsible parties for cost recovery for agency remediation.
PFAS Due Diligence Will Become Standard Practice for Commercial Real Estate Transactions
Another aspect of designating PFAS chemicals as hazardous substances is that those chemicals would fall under the umbrella of chemicals within the scope of Phase I Environmental Site Assessments. This means that as commercial properties change hands, it will become standard to evaluate the sites for PFOS and PFOA contamination in soil and/or groundwater from current, past, and future perspectives. This often-overlooked aspect of listing PFOA and PFOS as hazardous substances is likely to uncover large amounts of previously unknown or simply ignored PFAS contamination.
Will you be a responsible party?
CERCLA defines persons liable for recoverable costs as:
- the owner and operator of a vessel or a facility;
- any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
- any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and;
- any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance… [42 USC §9607(a)]
There are currently no plans by the EPA to make a CERCLA exemption for PFOA/PFOS for water treatment facilities who arrange or have previously arranged for disposal of PFAS laden sludge wastes either in landfills or to be re-used as fertilizers. This means that water treatment facilities will be potentially responsible parties for PFAS contamination created by those waste products past and present. This move is another example of the EPA’s work to assist with the PFOS/PFOA crisis.
If you manage or oversee a water treatment facility and would like a free consultation regarding your liability exposure for PFAS contamination under CERCLA, please contact Stag Liuzza at 504.593.9600.