CERCLA Liability for PFAS Contamination on Track to Begin in 2023
On Jan. 10, 2022, the Environmental Protection Agency (EPA) submitted a proposal to the White House Office of Management and Budget that will designate PFOA and PFOS as “Superfund hazardous substances.” In designating PFOA and PFOS (collectively “PFAS”) as a “hazardous substance” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the EPA can force parties responsible for PFAS contamination to pay for remediation. If the Office of Management and Budget does not object to the EPA’s proposal within 90 days, the proposal will be subject to public comment and will likely become a final rule in 2023.
The designation of PFOA and PFOS as “Superfund hazardous substances” will have sweeping impacts across several industries. Companies who used PFOA or PFOS will be liable for the full remediation of the contamination as well as any secondary adverse impacts. Once the CERCLA designation takes effect, those companies will face EPA enforcement actions. Manufacturing and waste management will likely be among the first industries the EPA targets. Any party who has contributed to PFAS contamination, however, may be held liable for the entire remediation cost even if they are not the only contributor. Current and past Superfund sites may also be reviewed for PFAS contamination.
Addressing PFAS contamination has become a top priority of the Biden administration EPA. The EPA’s proposal comes shortly after President Biden signed the Bipartisan Infrastructure Bill, which will invest $10 billion to help communities test for and clean up PFAS and other emerging contaminants. EPA Administrator Michael S. Regan emphasized that “[the] EPA is moving aggressively on clear, robust, and science-based actions to protect communities suffering from legacy PFOA and PFOS contamination.”
Once EPA finalizes its rule, states will be required to update their environmental regulations and some may place more stringent regulations on PFAS sites. Once the designation is final it will expose parties that used, manufactured, or transported PFAS to significant liability.
For more information on PFAS regulation and compliance, please contact a member of Taft’s Environmental practice.
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