EPA Designates PFAS as Hazardous Substances
In August 2022, the U.S. EPA issued a proposal regarding how certain PFAS chemicals will be regulated going forward. The agency announced plans to regulate certain PFAS under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or “Superfund.”
Per EPA’s proposal, 2 of the most widely used PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), will be classified as hazardous substances. The proposed designation follows decades of urging by environmental groups for the regulation of PFAS.
Communities have suffered far too long from exposure to these forever chemicals," said EPA Administrator Michael Regan. "The action announced today will improve transparency and advance EPA’s aggressive efforts to confront this pollution.
By classifying PFOA and PFOS as hazardous substances, EPA is seeking to hold responsible parties accountable for cleaning up communities with PFAS contamination. This responsibility extends from the time of contamination and includes all parties with potential involvement with the disposal of PFAS.
While most domestic manufacturers have eliminated PFOA and PFOS, these substances are still in use on a limited basis.
Given their extensive use and long-term persistence in the environment, PFOA and PFOS will likely be investigated and tested at contaminated sites, including landfills. Companies involved in the disposal of PFOA and PFOS should be prepared to address those remedial investigations in the near future, EPA said.
Responsible parties that have previously remediated contaminated sites and entered into consent decrees must also be aware of the implications of PFAS regulation. While consent decrees can provide a release from future liability, these releases are often limited to matters specifically covered by the settlement.
Consent decrees may also contain “reopener” provisions that allow EPA to bring new claims against responsible parties post-remediation if new conditions arise, such as the listing of additional toxic chemicals. Finally, EPA’s regulation of PFOA and PFOS could require parties who previously completed their remediation efforts to undertake additional actions.
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