On September 6, 2022, the U.S. Environmental Protection Agency (EPA) issued a notice of proposed rulemaking to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). EPA’s proposed rulemaking on PFOA and PFOS is the first time the Agency has utilized its authority to designate new chemicals as “hazardous substances” under CERCLA since its enactment. PFOA and PFOS are members of a class of per- and polyfluoroalkyl substances (PFAS), which are mobile in the environment and breakdown slowly. PFAS chemicals are found a wide array of consumer and industrial products.
The notice refers to the agency’s “Economic Assessment of the Potential Costs and Other Impacts of the Proposed Rulemaking to Designate Perfluorooctanoic Acid and Perfluorooctanesulfonic Acid as Hazardous Substances,” which presents a high-level analysis of potential costs associated with implementing the proposed rule. While the assessment discusses costs associated with release reporting requirements and Department of Transportation regulations, the issues of most interest to the CERCLA bar—e.g., costs associated with contaminated site management—are not analyzed in detail. Due to uncertainties with the number of potentially impacted sites, cleanup targets, and treatment technologies, the agency does not attempt to quantify the costs for investigating and remediating sites impacted with PFOA and/or PFOS. Focusing on the positive, EPA suggests hazardous substance designation could reduce costs if response actions occur more rapidly or if the private sector completes site cleanups more efficiently than the public sector. Even if costs are not reduced, EPA’s analysis assumes that costs might not increase if remedial efforts focused on other compounds, such as polychlorinated biphenyls or trichloroethene, also remediate PFOA and PFOS.
In reality, the hazardous substance designation will likely impose significant costs at CERCLA sites. Current screening levels for PFOS and PFOA are orders of magnitude lower than those for conventional contaminants (for example, screening levels are often in the part-per-trillion range for PFOS and PFOA compared to typical part-per-billion range for other contaminants). Analytical costs for PFOA and PFOS are often higher than those for conventional contaminants. Technologies for treating other contaminants may not be effective at addressing PFOS and PFOA, and thus there may be no “piggybacking” on remediation for other contaminants. Furthermore, designation of PFOS and PFOA as hazardous substances may delay remediation at CERCLA sites as additional assessments are conducted and remedial plans updated. The need for improved analytical methods and treatment technologies will further delay progress and increase costs. The action may trigger the identification of new CERCLA sites and lead to reopening of some closed sites when PFOA and PFOS are considered during required five-year reviews. CERCLA designation may also complicate ongoing remediation efforts managed under other regulatory frameworks. Because many states have remediation programs that incorporate federal hazardous substances lists, the reach of EPA’s action will extend beyond CERCLA sites.
EPA’s assessment states that hazardous substance designation improves EPA’s ability to transfer response costs from the public to polluters. The authors may not fully understand CERCLA’s liability framework. Potentially responsible parties include owners and operators of a facility where a discharge occurred and parties who disposed or arranged to dispose of hazardous substances. Manufacturers of either hazardous substances or products containing hazardous substances do not typically incur CERCLA liability for releases that occur at another party’s facilities. With the application of CERCLA’s joint and several liability, entities that unknowingly used PFAS-containing products could incur significant costs. Furthermore, EPA overlooks the fact that many sites impacted by PFOA and/or PFOS are publicly owned sites, such as municipal airports and local fire department training areas, and as such, the investigation and remediation costs may be borne by the public. The report notes that a hazardous substance designation may require changes in municipal wastewater treatment system operations but does not include estimates of associated costs.
While the information obtained through public comments may help regulators better understand potential cost implications, it will not likely affect the final decision. As noted in the proposed rule, EPA interprets the language of 42 U.S. Code section 9602 as precluding the agency from taking cost into account in designating hazardous substances.
