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  • April 10, 2023

    Implications of the EPA’s Proposed Rule Designating PFAS as Hazardous Substances

    The EPA’s proposed rule designating certain PFAS as “hazardous substances” provides tools to identify and address releases of PFAS into the environment, but it also raises unsettled questions. Derek Punches discusses the implications of the proposed rule, and recent developments.

    Derek J. Punches

    The recent proposal by the Environmental Protection Agency (EPA) to designate two per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the federal Comprehensive Environmental Response, Contamination, and Liability Act (CERCLA or “Superfund”) promises to provide greater information concerning the release of PFAS into the environment, as well as powerful tools to require the cleanup and recover costs for such releases.

    However, because of the ubiquity of these so-called “forever chemicals,” the proposed designation also raises a number of questions and concerns that remain unsettled. Affected stakeholders require further clarity on the scope and impact of the proposed rule before it becomes effective.

    Background: CERCLA

    Enacted in 1980, CERCLA provides the federal government with the authority to respond to actual or potential releases of certain hazardous substances into the environment. Unlike many state and federal environmental permitting programs, the law is primarily designed to be remedial in application.

    Derek Punches headshot Derek Punches, U.W. 2022, is an attorney at Stafford Rosenbaum in Madison, where he practices in municipal, administrative, and environmental and land use law.

    In addition to notification requirements and funding mechanisms, CERCLA includes a liability allocation scheme that is intentionally broad. The law imposes strict, and often joint and several, liability for restitution of response costs incurred by the government or a private party as a result of the actual or potential release of hazardous substances into the environment.1

    CERCLA extends liability for costs and damages associated with the cleanup to four classes of potentially responsible parties:

    • the current owner or operator of a facility;

    • any person who owned or operated facility at the time of disposal of the hazardous substance;

    • any person who arranged for disposal or treatment, or arranged for transport for disposal or treatment, of hazardous substances at the facility; and

    • any person who accepts or accepted hazardous substances for transport to sites selected by such person.

    The Proposed Rule

    Last fall, EPA published its proposal to designate two per- and polyfluoroalkyl substances as “hazardous substances” under CERCLA.2 Although there are hundreds of different PFAS chemicals, the proposed rule focuses exclusively on two of the most widely used substances – perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers.

    The proposed listing of PFOA and PFOS is an important and historic step for the agency. As previously noted, CERCLA provides authority for response and recovery actions for releases of “hazardous substances” into the environment.

    The definition of “hazardous substance” incorporates by reference hundreds of compounds and chemicals separately regulated under specified environmental statutes, including the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act.3

    In addition to those incorporated by reference, EPA has the authority to designate a substance as a “hazardous substance” if, when released into the environment, that substance “may present substantial danger to the public health or welfare or the environment.”4

    The proposed listing represents the first time that EPA has exercised its authority under this section to designate a new CERCLA hazardous substance. Considering the untested nature of this provision, the manner of this proposed designation could be one major hurdle for the agency.

    Importantly, the proposed rule includes updated notification requirements for the release of PFOA and PFOS into the environment. CERCLA assigns a default reportable quantity (RQ) of 1 pound to each hazardous substance and authorizes EPA to promulgate rules to revise that statutory RQ.5 Under the rule, the designation of PFOA and PFOS as hazardous substances would require that any person in charge of a vessel or facility report releases of PFOA and PFOS of this statutory RQ of 1 pound or more within a 24-hour period.

    Given the minimal threshold amounts of PFAS present in other regulations, it should be expected that EPA will seek to reduce the default RQ in the future.

    Because of the widespread use of PFAS chemicals over the last 70 years, such chemicals can now be found in soils, surface water, and groundwater throughout the country. Because of their limited capacity to degrade, PFAS persist in the environment, and often migrate with the flow of water. The proposed designation of PFOA and PFOS will not only increase the number of contaminated sites subject to the law, it will also expose a significant number of parties to joint and several liability as potentially responsible parties, including manufacturers, end users, and disposal companies.

    Moreover, the proposed listing would likely extend liability to passive receivers, like waste management providers and wastewater treatment plants, who have limited control over the amount of these substances they receive and limited options to dispose of them.

    Recent Developments

    Soon after EPA published its proposed rule, the State Bar of Wisconsin held its 34th Annual Environmental Law Update. There, Robert Kaplan, Regional Counsel for EPA Region 5, provided the keynote address and addressed questions related to the agency’s proposed PFAS designation. Some may have been glad to hear Kaplan urge patience to the audience. Although he could not comment on the particulars of the proposed rule, Kaplan indicated that EPA would likely use its enforcement discretion to pursue only the most serious contaminated sites and polluters.

    To that end, EPA hosted listening sessions to gather public input related to concerns about potential liability under CERCLA. The agency has indicated it will consider this input when drafting the agency’s enforcement discretion and settlement policy for PFAS.

    The stated purpose of this policy is to address stakeholder concerns and clarify when EPA intends to use its CERCLA enforcement authorities or discretion. The policy, as described on the EPA website, “will take into account various factors, such as EPA’s intention to focus enforcement efforts on PFAS manufacturers and other industries whose actions result in the release of significant amounts of PFAS into the environment, and EPA’s intention not to focus on pursuing entities where factors do not support taking an enforcement action.”

    Possible Unintended Consequences

    Given the high cost of liability, many await further clarity on how such enforcement actions will be conducted. However, regardless of EPA’s enforcement discretion, the proposed listing could result in third-party contribution and cost-recovery claims for a number of parties, including many who cannot prevent becoming responsible parties.

    The final promulgation of the proposed rule is expected this summer.

    While the proposed rule has the potential to improve environmental and public health outcomes, absent further clarifications or changes it may also carry unintended consequences.


    1 See 42 U.S.C. § 9607(a).

    2 87 Fed. Reg. 54,415 (Sept. 6, 2022).

    3 See 42 U.S.C. § 9601(14). A full list of the hazardous substances under CERCLA is provided in the table in 40 C.F.R. § 302.4.

    4 42 U.S.C. § 9602(a).

    5 42 U.S.C. § 9602(b).

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    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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