The Long Road to PFAS Regulation

PFAS-regulation-601945516-300x200In April 2023, the EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting input on the designation of seven PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This NPRM followed a proposed rule released in August 2022, which would designate the two most ubiquitous PFAS—PFOA and PFOS—as hazardous substances.

As detailed in our alert, these designations, if finalized, would impose liability on various parties, including past and present owners and operators of contaminated properties, entities that arranged for the disposal of the relevant PFAS at the contaminated properties, and even transporters. The potential liability implications are significant, given CERCLA’s regime of strict, joint, and several liability, as well as the EPA’s proposed maximum contaminant levels (MCLs) for six PFAS, including PFOA and PFOS. MCLs serve as de facto cleanup levels, and the concentrations proposed for PFOA and PFOS are orders of magnitude lower than for other industrial chemicals, meaning potentially prolonged remediations and higher costs relative to contamination involving other regulated chemicals.

Because CERCLA liability may attach irrespective of the intent or negligence, the proposed rulemakings stand to affect, among others, “passive receivers” of wastes and chemicals containing PFAS. These are entities that may unknowingly accept possession of or otherwise handle PFAS as an intrinsic part of their operations based primarily on the ubiquity of these chemicals. The EPA has informally signaled that it does not plan to enforce against four categories of passive receivers: (1) municipal solid waste landfills, (2) public water utilities, (3) certain agricultural operations involving the land application of biosolids, and (4) airports, where PFAS-containing aqueous film forming foam have traditionally been released as part of firefighting activities.

In early May 2023, in direct response to the EPA’s action, U.S. senators John Boozman (R-AR) and Cynthia Lummis (R-WY) introduced five bills to protect certain categories of passive receivers from the threat of CERCLA liability. S.B. 1430, the Water Systems PFAS Liability Protection Act, would prevent parties from recovering under CERCLA from municipal water systems, water treatment operators, municipal stormwater dischargers, or local water agencies and contractors thereof, that release PFAS as part of their operations. Four related bills would prevent parties from recovering from certain agricultural operations (S. 1427), airports (S. 1433), entities using fire suppression systems containing PFAS (in accordance with applicable law) (S. 1432), and resource management facilities (S. 1429), for costs arising from a release to the environment of certain PFAS.

Most recently, the Senate Environment and Public Works Chair Tom Carper (D-DE) and ranking member Senator Shelley Moore Capito (R-WV) released draft legislation to improve the mitigation and remediation of PFAS contamination. The bill has received particular attention for employing a narrower definition of PFAS, which would soften the potential blow of liability against publicly owned wastewater treatment works. The bill has not been formally introduced, and the timing for moving the legislation is unclear.

The flurry of PFAS-related bills proposed statutory amendments to CERCLA is notable, as the last major statutory amendment occurred over 20 years ago, with the Brownfields Amendments. The current climate provides a unique opportunity for businesses and stakeholders to shape the future of CERCLA liability as it pertains to PFAS, as lawmakers will be inclined to consider the input of their constituents in further refining proposed bills, proposing future bills, or voting on any proposed legislation.