General Publications September 7, 2021

“How PFAS Action Act Could Complicate Superfund Cleanups,” Law360, September 7, 2021.

Extracted from Law360

On July 21, the U.S. House of Representatives passed the PFAS Action Act — the most comprehensive piece of federal legislation thus far to deal with per- and polyfluoroalkyl substances.

PFAS are a group of man-made chemicals that have been manufactured since the 1940s. PFAS have been found in many common products, including firefighting foam, nonstick cookware, water-resistant clothing, cleaning products, paints and sealants, personal care products, and cosmetics. They are known as "forever chemicals," because they resist degradation and are highly persistent in the environment.

If passed by the U.S. Senate, the PFAS Action Act will have sweeping implications for regulated businesses and industries.

Background on the PFAS Action Act

The PFAS Action Act establishes requirements and incentives to limit the use of PFAS, and to remediate PFAS in the environment. It is the first major piece of federal legislation on PFAS to pass the House.

Among other requirements, the act would direct the U.S. Environmental Protection Agency to designate two PFAS chemicals — perfluorooctanoic acid, or PFOA, and perfluorooctanesulfonic acid, or PFOS — as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, also known as the Superfund law.

This designation would require remediation of releases of those two PFAS into the environment. Within five years, the act would require the EPA to determine whether the remaining PFAS should be designated as hazardous substances.

This provision was likely included as part of interagency negotiations between the EPA and the U.S. Department of Defense. If the EPA simply designated PFOA and PFOS as hazardous substances — which the agency's administrator can do with a stroke of pen — the federal government would be subject to massive liabilities associated with PFAS contamination resulting from the military's decades of use of firefighting foam containing those substances.

But if Congress mandates the listing, it could abate CERCLA litigation against the Department of Defense, by including a narrow exemption from CERCLA liability for the owners and operators of airports using PFAS firefighting foam pursuant to federal requirements for the use of such foam, so long as all regulations for safe handling are followed.

Of course, the proposed legislation includes such an exemption. This compromise appears prudent, and will curtail a flood of litigation over contaminated water systems against the government and local airport operators.

In addition, the act would direct the EPA to promulgate a rule adding PFOA and PFOS as hazardous air pollutants under the Clean Air Act. The bill would also set a five-year deadline for the EPA to determine whether other PFAS should be listed as hazardous air pollutants.

The act would also direct the EPA to promulgate drinking water standards for PFAS under the Safe Drinking Water Act, which mandates that the EPA set standards for naturally occurring and man-made contaminants in the nation's public water supply, and requires public water system operators or owners to comply with these standards.

Under the Safe Drinking Water Act amendments of 1996, the EPA has the authority to set drinking water standards. Drinking water standards include two primary components: (1) a maximum contaminant level, or MCL, goal, and (2) either an MCL or a treatment technique.

Although the EPA has issued nonregulatory health advisory levels for PFOA and PFOS, there are currently no federal MCLs established for PFAS. If passed, the act would direct the EPA to promulgate a drinking water standard for PFOA and PFOS at a minimum — and could cover additional PFAS at the discretion of the EPA. This will continue an ongoing rulemaking process within the EPA over MCLs for this suite of chemicals.

But the regulated community should not expect science to truly guide the actual MCLs for PFAS. We expect the EPA to protect itself from latent criticism by using reliable detection limits in water as its default in setting the MCLs. The EPA will likely justify its decision to use detection limits with risk models that contain multiple layers of unjustified uncertainties.

Ultimately, chemistry, not epidemiology or toxicology, will serve as the basis for the EPA setting MCLs for these chemicals. This is unfortunate, because the detection limits for these chemicals are in the single digit parts per trillion — which, even for a chemical that accumulates in humans, is very low, and will inevitably cost billions in unnecessary cleanup costs.

Finally, the act directs the EPA to promulgate a rule under the Clean Water Act establishing effluent limitations and pretreatment standards for the introduction or discharge of PFAS. We expect these limits may be largely unachievable, because best available technologies for PFAS are expensive and not widely available.

Implications for Businesses

Designating PFOA and PFOS as hazardous substances under CERCLA would have significant impacts on businesses. CERCLA liability is expansive. It includes large and small companies, local governments, family businesses and other organizations potentially liable for a single site. Considerable litigation and negotiations are then required to sort out responsibilities between parties.

Facility owners and operators — including local governments and authorities that operate wastewater treatment plants and landfills — could become liable for their past or present handling of materials containing PFOA and PFOS. For example, designation of PFOA and PFOS under CERCLA as hazardous substances could:

  • Delay the redevelopment of Superfund sites affected by releases of these substances. If PFOA and PFOS are designated as hazardous substances, many more sites across the country — potentially hundreds — could become Superfund sites, which could affect construction schedules and investment-backed expectations. Relocation of soils containing PFOA and PFOS could also create future CERCLA liability.
  • Lead to reopening Superfund sites for which cleanup has been completed, including sites that have received a release of liability and undergone redevelopment. As a result of lower cleanup levels and the potential inclusion of additional responsible parties, site reopening could become contentious and expensive.
  • Delay ongoing cleanups of PFOA and PFOS substances under state authority. Because only the EPA can approve CERCLA cleanups, states would likely have to transfer oversight of the CERCLA process to the EPA. This could result in logistical difficulties and changed expectations.
  • Allow the EPA to engage in cleanup and enforcement actions under CERCLA for properties affected by PFAS. Given the joint and several, strict liability nature of CERCLA liability, businesses and industries that contribute minimally to PFAS contamination may still be subject to such enforcement actions. Members of the public would also be allowed to challenge the adequacy of PFAS cleanups under CERCLA's citizen suit provision. Litigation could be expensive and disruptive to businesses.
  • Expand the scope of prepurchase due diligence, to allow prospective purchasers of property affected by PFAS to insulate themselves from CERCLA liability. For example, the CERCLA bona fide prospective purchaser defense allows a purchaser to assert a defense to a claim for contribution if the purchaser meets certain criteria, including conducting due diligence and taking steps to prevent continuing or future release and exposure to previously released substances. Purchasers will have to consider potential PFAS contamination issues stemming from prior uses of the property in due diligence reports and tests.
  • Increase costs associated with treating water and wastewater contaminated with PFAS. Companies would have to treat residuals containing PFAS as hazardous waste, and dispose of PFAS-laden filters at hazardous waste landfills. As a result, entities that are not permitted as hazardous waste treatment facilities may refuse to regenerate materials like spent granular activated carbon — the most widely accepted and commonly used treatment technology for water contaminated with PFAS.

Notably, although the act provides an exemption from CERCLA for the owners and operators of airports using PFAS firefighting foam, there is no exemption for water and wastewater utilities that merely receive and dispose of PFAS found in water supplies. This would mean that municipal drinking water and wastewater utility ratepayers could face increased costs to clean up PFAS that was legally disposed of following the water treatment process.

Separate from CERCLA, designation of PFOA and PFOS as hazardous air pollutants under the Clean Air Act would impose standards for controlling the emissions of these substances on industry groups. Although PFOA and PFOS have been phased out of production in the U.S., the PFAS Action Act would require the EPA to determine whether other PFAS substances that are still manufactured and used in the U.S. should be designated as hazardous air pollutants.

Now the bill will move forward to the U.S. Senate for debate and consideration. While it passed the House by a vote of 241 to 183, with 23 Republican members joining Democrats, it will likely face an uphill battle in the Senate, where Democrats hold a slim majority. Senate Republicans will likely filibuster the bill.

While the ultimate fate of the act is uncertain, the EPA under the Biden administration is likely to take action on PFAS without Congress. The passage of the act by the House only adds to mounting pressure on the administration to take sweeping action on PFAS. Thus, regardless of the fate of the PFAS Action Act, businesses and industries will be affected by anticipated changes to the PFAS regulatory regime that will likely occur during Joe Biden's presidency.

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