And So It Begins: EPA adds PFOS and PFOA to CERCLA list of Hazardous Substances

April 26, 2024 - John P. Boyd
On Friday, April 19, 2024, the U.S. Environmental Protection Agency (EPA) added two of the 12,000+ PFAS to the CERCLA list of hazardous substances. CERCLA is commonly known as the superfund law and was passed in 1980 to allow EPA and state agencies to seek cleanup costs for releases of hazardous substances into the environment. CERCLA can impose broad liability on potentially responsible parties and is used by EPA and state agencies to force such entities to respond and remediate to releases of hazardous substances.
PFOS and PFOA, two of the more infamous PFAS, are now on the list. EPA has signaled this move for months so this is no surprise. Still, this final rule will cause significant headaches for commercial and industrial property owners, tenants, and the purchase and sale of property. Statewide assessment of soil, surface water and groundwater by the S.C. Department of Health and Environmental Control (DHEC) found PFOS and PFOA are widespread across South Carolina. Now, such “releases” of PFOS and PFOA could have severe ramifications for the property owners, operators, prospective purchasers and sellers of affected property. EPA and DHEC now can exercise their enforcement authority and the strict, joint and several, and retroactive liability scheme of CERCLA to require parties to cleanup a release of PFOS or PFOA deemed to be a threat to human health and the environment. However, a memorandum issued April 19, 2024, by the EPA Assistant Administrator for Enforcement and Compliance Assurance, David M. Uhlmann, made clear that enforcement is discretionary.  Because PFOS and PFOA are so widespread, EPA may take equitable factors into consideration before bringing an enforcement action against certain entities. 

“EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including, but not limited to, community water systems and publicly owned treatment works, municipal separate storm sewer systems, publicly owned/operated municipal solid waste landfills, publicly owned airports and local fire departments, and farms where biosolids are applied to the land. For these same parties, EPA can use CERCLA statutory authorities when appropriate to enter into settlements that provide contribution protection from third party claims for matters addressed in the settlement.”

This final rule will most likely be challenged. Nonetheless, this heralds a new day for PFAS litigation and marks another step in the comprehensive regulation of PFAS in the environment. 
Please contact John Boyd for additional information on PFAS litigation.