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April 23, 2024

EPA Lists Two New "Forever Chemicals" Under CERCLA

On April 19, 2024, the US Environmental Protection Agency (EPA) issued a final rule listing two “forever chemicals” as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The two chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), are two of the most widely and longest-used chemicals in the polyfluoroalkyl substance (PFAS) family. 

The listing comes after years of study, which resulted in the EPA finding there is significant evidence that both chemicals may substantially endanger human health and the environment and lead to cancers, impacts to the liver and heart, and immune and developmental damage to infants and children.

As a result of the designation, the EPA can now investigate and clean up releases of the chemicals and ensure that leaks, spills, and other releases are reported. The final rule requires entities to immediately report releases of PFOA and PFOS that meet or exceed the “reportable quantity” to the National Response Center, state or tribal emergency response commission, and the local or tribal emergency planning committee. The final rule says the “reportable quantity” for a release is set at one pound within a 24-hour period for PFOA and PFOS and their salts and structural isomers. In addition to establishing reporting requirements, the government and other parties can now also sue for contributions to cleanups and to recover costs related to those actions under CERCLA. 

From a practical standpoint, the EPA’s designation will add a new layer of scrutiny and potential liability at Superfund sites around the country—whether open or closed. Ongoing investigations at open Superfund sites will likely need to be supplemented with sampling for PFOA and PFOS, to the extent not already done, which is likely to increase the amount of cost recovery and contribution claims. Likewise, Superfund sites that have already been closed are subject to the EPA’s five-year review process such that the final rule will likely result in the need for additional data collection at these sites.

In connection with the final rule, the EPA also issued a separate CERCLA enforcement discretion policy. This policy clarifies that the EPA does not intend to pursue certain parties, such as farmers, municipal landfills, water utilities, municipal airports, and local fire departments, under CERCLA and will instead focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties. While there is no guarantee anyone will be immune from liability, since CERCLA allows parties to sue each other for costs, the EPA does have the authority to enter into settlements that not only resolve the parties’ liability to the federal government but also provide protection against third-party claims for contribution.

Once effective, the final rule could be subject to legal challenge. The final rule is based on the EPA authority under Section 102(a) of CERCLA. However, this is the first time the EPA has designated chemicals as hazardous substances under that provision.

The EPA will publish the final rule in the Federal Register shortly. The final rule will become effective 60 days after publication. 

If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Carol Snider, Mass & Toxic Torts Practice Area chair, at csnider@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; Andrew Carroll, associate, at acarroll@barclaydamon.com; or another member of the firm’s Environmental, Mass & Toxic Torts, or Torts & Products Liability Defense Practice Areas.
 

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