On August 26, 2022, EPA issued a long-anticipated proposal to designate two of the most widely used PFAS chemicals (PFOA and PFOS) as hazardous substances under CERCLA. The adoption of this rule would increase transparency around releases of these harmful chemicals, assist in identifying contaminated areas, and help to hold polluters accountable for cleaning up their contamination instead of shifting that burden to taxpayers.
What is CERCLA?
CERCLA stands for the Comprehensive Environmental Response, Compensation, and Liability Act. It provides a Federal “Superfund” to remediate abandoned hazardous-waste sites. CERCLA also addresses acute discharges, spills, and other releases of hazardous substances into the environment. The Act was enacted in 1980 in response to widespread environmental contamination at industrial sites. CERCLA grants broad authority to EPA to address releases of hazardous substances that may endanger public health or the environment. The statute is intended to clean up sites contaminated with hazardous waste. CERCLA is also meant to prevent contamination of future sites by forcing responsible parties to pay damages for remediation.
Who is liable for clean-up under CERCLA?
CERCLA places liability for the remediation of hazardous waste contamination on four categories of responsible parties:
- Current owners or operators,
- Past owner or operator at time pollution occurred,
- Arrangers (those who arrange for disposal or transport of hazardous wastes), and
- Transporters (those who transported hazardous waste).
Who is responsible for performing the clean-up?
The EPA is responsible for cleaning up abandoned sites when potentially responsible parties cannot be identified, or when they refuse to act. These are referred to as Superfund sites. When a responsible party is identified, EPA mandates and oversees private party remediation through various tools such as orders, consent decrees, and other settlements. EPA also recovers money from solvent individuals and companies once a cleanup is complete.
How will listing these two PFAS as Hazardous?
Listing Will Help Identify PFAS Pollution
A Phase I Environmental Site Assessment, often called an ESA, determines the current and historical uses of a property. A Phase I ESA is part of the due diligence process during a commercial real estate transaction. This includes a property purchase, sale, refinancing, or lease. A Phase I ESA is meant to assess whether present or past property uses impacted the underlying groundwater or soil. It is intended to identify threats to the environment and/or human health. When a Phase I ESA is complete, the environmental compliance expert will recap any issues identified with the property. The expert will also recommend actions needed to address the identified concerns.
Once PFAS is designated, managers, owners, lenders and/or lessors of commercial property can be held liable under CERCLA. Liability under CERCLA would be by virtue of ownership or operation of a PFAS contaminated property. These categories of people can be forced to pay for the remediation of PFAS in the groundwater and/or soil that may exist on a site. Businesses will need to perform due diligence on PFAS contamination for commercial property transactions to avoid any unintended environmental liability.
Make Polluters Pay, Not Citizens
The EPA made available a $1 billion grant under the Infrastructure Investment and Jobs Act to help municipalities to fight PFAS contamination. The NIEHS awards over $10 million in grants annually to conduct PFAS research. New Hampshire has set up a fund providing up to $50 million in low interest loans for public water systems and wastewater facilities to address PFAS contamination. Maine has established multiple funds to assist with testing and remediation of PFAS. Massachusetts has provided millions to public water systems to help address PFAS contamination through remediation and upgrades to treatment facilities.
The states and federal government have started to provide significant funds to address PFAS contamination, but the tax payers should not be the ones footing the bill. The polluters should pay. The designation of PFOA and PFOS as hazardous substances under CERCLA will have considerable financial impacts on companies with PFAS pollution concerns. Chemical companies, waste management companies, wastewater treatment utilities, defense contractors, and paper mills can be held responsible for the billions in damages to public water systems and the environment.
Lobbyists are working overtime pressing the EPA to consider PFAS CERCLA exemptions for certain industries, which would exempt certain industry types from liability. The EPA should avoid any exemptions that will weaken their ability to address PFAS contamination in the U.S. Companies that use(d) PFOA and PFOS in their industrial or manufacturing processes, companies that sent PFOA/PFOS waste to landfills, companies that disposed of PFAS wastes, and companies that discharged PFAS chemicals into the environment will be at immediate risk for enforcement action by the EPA. The EPA should stick to their guns and hold ALL PFAS polluters accountable.
