Implications Of EPA Designation Of PFOA and PFOS As “Hazardous Substances”

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The Biden Administration has pledged to designate certain PFAS as hazardous substances under federal law. What effect would the United States Environmental Protection Agency’s (EPA) designation of PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) have on the legal landscape? As you may recall, in a previous post we discussed the regulatory processes through which EPA can designate PFOA and PFOS as “hazardous substances.” Now, in this post we discuss what a designation means for liability for responsible parties under CERCLA and relevant reporting obligations.

Responsible Party Liability

The first immediate effect occurs in the context of a responsible party’s liability to EPA and other responsible parties. Under CERCLA section 107(a) (42 U.S.C. § 9607(a)), EPA can recover costs that it incurs addressing the release of a “hazardous substance” from responsible parties. Section 107(a) of CERCLA identifies four categories of persons who are responsible for “all costs of removal or remedial action” incurred by EPA, and those terms are defined to cover the cleanup, removal, and other remedies implemented to address a release or threatened release of a “hazardous substance” into the environment. In addition, under section 113(f) of CERCLA (42 U.S.C. § 9613(f)), a responsible party can seek contribution from other parties who are also liable for the release of a “hazardous substance” under section 107(a). Thus, designation of PFOA and PFOS as hazardous substances would both create CERCLA liabilities and afford contribution remedies to responsible parties at PFAS sites.

Reporting Obligations

The second effect involves release reporting obligations. Under CERCLA section 103(a) (42 U.S.C. § 9603(a)), a person in charge of a facility must report any release of a “hazardous substance” from the facility if the quantity of that release is equal or greater than the “reportable quantity” (RQ). Section 102(b) of CERCLA (42 U.S.C. § 9602(b)) dictates an RQ of one pound for any “hazardous substance” if EPA does not promulgate a specific quantity for that substance at 40 CFR 302.4 and 302.5.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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