Legal Impacts:
On April 19, 2024, the EPA issued a pivotal final rule under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Effective July 8, 2024, this rule designates PFOA and PFOS, along with their salts and structural isomers, as hazardous substances. This classification underscores the environmental persistence and bioaccumulation of PFOA and PFOS. Moreover, the EPA’s action further creates potential environmental liability under federal law.
The Ubiquity and Risks of PFAS:
PFAS, chemicals introduced into commercial production in the 1940s, are ubiquitous in the environment and consumer products due to their ability to withstand extreme temperatures, resist degradation, and provide nonstick properties. Commonly found in lubricants, water-repellent clothing, non-stick cookware, and firefighting foams, PFAS usage has led to extensive litigation.
Health Impacts and Regulatory Response:
The EPA’s final rule outlines the severe health impacts linked to PFOA and PFOS exposure include:
- testicular and kidney cancer
- cardiovascular disease
- pregnancy-induced hypertension
- preeclampsia, and
- weakened immune response to vaccines.
By categorizing these chemicals as hazardous under CERCLA, the EPA aims to accelerate the identification, action, and cleanup of contaminated sites.
Strict Reporting Requirements:
This hazardous substance designation under CERCLA Sections 103 and 111(g), and Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA), enforces strict reporting requirements. Facilities and vessels must report any release of one pound or more of PFOA or PFOS within 24 hours to the National Response Center (NRC) and other relevant agencies. Additionally, owners or operators must notify potential injured parties about any releases.
Environmental Liability and Site Cleanup:
The classification of PFAS as hazardous substances under CERCLA has profound implications for environmental liability. The EPA may now add sites contaminated with PFOA and PFOS, such as fire training facilities, military bases, and airports, to the National Priorities List (NPL), imposing retroactive liability on their owners and operators. Furthermore, this inclusion could lead to more extensive remedial actions. Furthermore, generators of PFAS-contaminated waste might face liability for cleanups at facilities managing multiple contaminants, including landfills.
Impact on Real Estate Transactions:
Furthermore, this designation by the EPA impacts real estate transactions. The potential for PFOA and PFOS releases must be considered to comply with the EPA’s All Appropriate Inquiries (AAI) standard, essential for benefiting from the bona fide prospective purchaser defense to CERCLA liability.
EPA’s Enforcement Discretion and Industry Response
Following the announcement, the EPA issued a memorandum detailing its PFAS Enforcement Discretion and Settlement Policy under CERCLA. This policy primarily targets PFAS manufacturers, parties utilizing PFAS in manufacturing, and other industrial users as Potentially Responsible Parties (PRPs). Moreover, the EPA plans to use CERCLA statutory protections and enforcement discretion policies to address stakeholder concerns about PFAS liability. This includes considering whether entities are government bodies, provide essential public services, or are actively involved in PFAS use and disposal.
Conclusion
For legal professionals, understanding the implications of this rule is crucial. The designation of PFAS as hazardous substances under CERCLA introduces significant changes to environmental liability and reporting requirements. Staying informed about these developments can help mitigate potential risks and navigate the complexities of environmental law. Legal practitioners should closely monitor the evolving landscape of PFAS regulation and be prepared to advise clients on compliance and liability issues effectively.
