While most regulatory attention to date has focused on perfluorinated chemical substances (“PFAS”) in drinking water, pressure is growing for the U.S. Environmental Protection Agency (“EPA”) to designate at least some PFAS compounds as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”). At his January 2019 confirmation hearing to become EPA Administrator, Acting EPA Administrator Andrew Wheeler fielded numerous questions on what regulatory limits EPA will set for PFAS in its forthcoming management plan. Wheeler indicated EPA’s near term plans do not include drinking water standards, but are likely to address PFAS levels at Superfund sites and under the Toxic Substances Control Act (“TSCA”). Recently introduced legislation, H.R. 535, the ‘‘PFAS Action Act of 2019’’, would require EPA to designate all PFAS compounds as hazardous substances within one year of enactment. Although the lack of a CERCLA hazardous substances designation does not prevent Superfund actions against PFAS manufacturers and downstream users, this kind of change is likely to accelerate the pace of remedial actions and inevitably will be cited by plaintiffs in personal injury or property damage litigation. It could also trigger “reopener” liability at previously remediated Superfund sites. For many reasons, these developments bear close watching.
States, localities, and individuals have sued PFAS manufacturers and others – most prominently military and other facilities that have used firefighting foam that contains PFAS compounds. Settlements are already reaching numbers in the millions of dollars and dozens of additional PFAS lawsuits are pending around the country. Many other industries used these chemicals in a host of applications, including textiles, paper and packaging, auto supplies, paint and coatings, and the oil and gas and mining sectors. The chemicals have highly useful properties, including water and grease resistance for textiles and packaging, and surfactants that enhance recovery in oil and gas and mining operations. Widely considered safe for many years, PFAS currently have some reference and advisory levels but no federal regulatory limits. In the absence of federal regulation, an increasing number of states have adopted various legally enforceable standards, generally without the benefit of rigorous scientific assessments. This patchwork of criteria creates challenges for parties that may need to defend against legal attacks on properties with PFAS legacy, prompting some industry members to urge EPA to adopt a uniform national standard.
All indications suggest this issue will be important in the coming year, and parties with regulatory or litigation exposure risk should consider actively engaging on PFAS policy issues, as well as evaluating litigation risk and strategies to manage it.
