On April 19, 2024, just nine days after finalizing the first-ever national, legally enforceable drinking water standard for six individual per-and polyfluoroalkyl substances (PFAS), the Agency designated PFOA and PFOS, two widely used PFAS substances, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

In its press release announcing this action, EPA said it took this step in its efforts to protect people from “the health risks posed by exposure to ‘forever chemicals’ in communities across the country.”

CERCLA’s Liability Framework

CERCLA, or as it’s more commonly known – Superfund, was originally enacted in 1980 in response to such well-known contamination hotspots as Love Canal and Times Beach, and later reauthorized in 1986 as the Superfund Amendments and Reauthorization Act (SARA). It established a federal "Superfund" to clean up uncontrolled or abandoned hazardous-waste sites, as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment. Through CERCLA, EPA was given power to seek out those parties responsible for any release and assure their cooperation in the cleanup.

Under CERCLA’s strict liability scheme, parties responsible for, in whole or in part, the presence of hazardous substances at a site, are financially liable for the costs of cleanup. CERCLA allows Responsible Parties (RPs) who pay for cleanup costs to seek contribution for those costs from other RPs. This commonly spurs cost recovery actions under CERCLA §107(a) or contribution actions under §113(f). Section 113 actions are among the most litigated provisions of CERCLA, under which an RP may sue a third party for contribution. Section 113 allows an RP (or group of RPs) to remediate the contamination, enter into a settlement with EPA/DOJ and then sue other RPs for reimbursement of response costs incurred.

EPA’s PFAS Enforcement Discretion Policy Announced

EPA’s announcement included a separate “PFAS Enforcement Discretion and Settlement Policy Under CERCLA.” In it, EPA provides direction about how it will exercise its enforcement discretion in matters involving PFAS. The memorandum describes how EPA will focus on holding responsible entities that significantly contributed to the release of PFAS contamination into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.

This policy indicates that EPA “does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including farmers, municipal landfills, water utilities, municipal airports, and local fire departments.”

Impacts of EPA’s PFAS CERCLA Designation

Due to the widespread use of various PFAS over the decades since its introduction prior to World War II, and its near ubiquitous presence in all manner of industrial and commercial products, it is foreseeable there will be an explosion in the number of sites at which PFAS cleanups will be directed under CERCLA. Currently, those sites number in the thousands, and this is before PFAS was even considered as a substance requiring assessment and remediation. With EPA’s CERCLA designation of PFAS, there is no telling the degree to which the number of CERCLA sites will increase.

The designation of PFAS under CERCLA could lead to the reopening of previously closed Superfund sites due to the unremediated presence of these chemicals. For existing Superfund sites approaching closure status, these designations could delay the timeline of remedial projects, tack on significant additional costs and testing requirements, impose new treatment technologies, and add years to post-cleanup monitoring.

EPA’s designation of PFOA and PFOS could also significantly impact myriad businesses and other entities responsible for their release to the environment. Potentially Responsible Parties (PRPs) could include manufacturers and importers of these substances, businesses that use or manufacture products containing these chemicals, and the waste management and other facilities that treat them. This could even involve those entities that are the focus of EPA’s PFAS Enforcement Discretion Policy, as they could be targeted for contribution claims by RPs, and could be sued by allegedly aggrieved persons who claim exposure to these PFAS chemicals.

Next Steps

The listing of PFOA and PFOS as hazardous substances will have substantial consequences for a wide range of industries. Companies will face increased reporting requirements as well as enhanced risks for Superfund liability. Most significantly, the rule would give EPA the authority to order cleanups at contaminated sites and to recover cleanup costs from potentially responsible parties. Private parties that conduct cleanups consistent with the National Contingency Plan could also recover PFOA and PFOS cleanup costs from potentially responsible parties. Given the expansive definition of a potentially responsible party, in combination with the joint-and-several, strict liability (regardless of fault) statutory scheme of CERCLA, this proposal has far-reaching implications for entities with even a minor operational connection to PFOA or PFOS. Further, we’ll likely see the addition of new Superfund sites, and the remediation actions and allocations at existing sites may be altered.

The retention of technical experts skilled in PFAS testing, remediation, and offsetting strategies is crucial. Companies should be consulting with qualified attorneys and technical consultants in developing a compliance and risk mitigation strategy as they brace for potential increased litigation in the wake of the new regulations.