From a litigation perspective, designating PFOA and PFOS as CERCLA hazardous substances will have a substantial impact on future litigation. Currently, EPA’s Chemical Data Reporting (CDR) rule under the Toxic Substance Control Act (TSCA) only requires that manufacturers report use of PFOA and PFOS above a 2,500 pound threshold at an individual site, while Toxic Release Inventory (TRI) reporting requirements currently require reporting for annual releases over 100 pounds for PFOA and PFOS. EPA’s proposed rule, by contrast, would require reporting for every single release of PFOA or PFOS above a one pound threshold over a 24-hour period. This dramatically lower reporting requirement will generate an incredible amount of data regarding nearly each and every low level release of PFOA and PFOS at individual sites within the U.S. These publicly available reports on each and every potential low level release of these chemicals will create a roadmap for civil litigation.

As one example, litigation concerning reduced property value due to PFOA and PFOS releases has existed for years. However, with the identification of a large number of additional facilities that may have released low levels of PFOA and PFOS into the area surrounding the site at issue, there will be new potential targets for other property owners to seek recovery for potential lost property value.

As another example, numerous medical monitoring class action cases have been filed alleging community exposures to PFOA and PFOS through environmental releases from large manufacturers. The new reporting requirements could potentially identify additional new defendants that may have contributed, at extremely low levels, to potential exposures to PFOA and PFOS in a proposed class. Such cases carry significant risks and costs that these potential new defendants may not presently anticipate.

Additionally, these low reporting thresholds may identify manufacturers and products that have not exceeded any of the current reporting requirements to date. This low level reporting will potentially identify new potential manufacturers and products that may contain extremely low levels of PFOA or PFOS, and provide a roadmap to consumer product litigation that, until now, had not been reasonably anticipated.

First and foremost, clients need to assess their operations to determine whether, and to what extent, their facilities may be subject to these new low level reporting requirements. They should also assess whether it would be possible to modify existing operations or raw materials in order to reduce or eliminate the release of PFOA and PFOS in advance of the reporting requirements coming into effect. To the extent that no such elimination or reduction can be made, clients should assess the manner in which such releases can be controlled or isolated in order to shore up potential defenses regarding anticipated future litigation.