EPA Launches a Process to Regulate PFAS Under CERCLA
17 January 2022
Godfrey & Kahn S.C.
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The U.S. Environmental Protection Agency will be shutting down on Jan. 10, 2022
To regulate two Per-
Polyfluoroalkyl Substances, (PFAS), are considered hazardous
Substances covered by the federal Comprehensive Environmental Regulation
Response, Compensation and Liability Act, also known as
Superfund. This rulemaking will change the regulatory landscape
A wide range of people are affected by authority.
interests. This week, EPA took a specific action
Sending a plan and supporting documentation to the White House Office of Management
Budget to create a rule proposal to regulate certain PFAS.
This Spring, such actions are expected to take place.
PFAS, a group of more than 5,000 chemicals, was first discovered almost immediately.
It was eighty years ago that it attracted significant attention.
Regulators of state governments, businesses, citizens, and environmental
Interest groups, environmental professionals, and the media. PFAS
They are found in many consumer products, including clothing and carpeting.
Cosmetics, kitchenware, and food packaging.
PFAS are persistent in the environment. They have also been linked to
significant health risks. The regulatory authorities, which include the
California recently recognized PFOA/PFOS.
The EPA proposes to list two PFAS as CERCLA-hazardous substances.
as known or likely carcinogens. These rules were created by
It’s possible that the EPA will determine that any level PFOA should be removed
PFOS in drinking-water is unacceptable.
WHO IS IMPACTED BY EPA’S PROPOSED PFAS
Identifying PFAS in the CERCLA hazardous substances list could have an impact on the
These are the types of organizations:
- Manufacturers:Businesses that have used
PFAS can be used in manufacturing processes and coatings.
Surfactants, waterproofing and nonstick applications. Oil and
Stain resistance properties
- Businesses with Class B Firefighting
Systems:Any business that has a Class B Firefighting Certificate
System that used a PFAS containing aqueous film to form foam
(AFFF) and National Fire Protection Association
Periodic testing of such systems is supported
- Property owners whose property was affected by AFFF
applied:Any property owner or operator
This was the scene of an AFFF-controlled fire.
- Businesses for sale and buyers:Any
Participant in an acquisition or divestiture business interests
assets, which includes transactions that use the ASTM Phase I
Transactional due diligence requires environmental assessment protocols
To qualify for an exemption from liability
All Appropriate Inquiry
- Brownfield property ownersAny property
Developer, owner, or municipality that is involved in the redevelopment
- Participants in litigation and dispute resolution
hazardous substances:Any party that has been, or is, a party.
Could be a responsible party
With a hazardous substance remediation concern under CERCLA
Potentially under relevant state law, and parties to
These matters are subject to litigation
- Wastewater utilities:Publicly owned
Treatment works (or POTWs) that treat and receive industrial patients
Perhaps even domestic wastewater.
You can manage sludge, biosolids and wastewater treatment by
Practices that include land spreading or disposal at a landfill
- Municipalities:Municipalities that have
Managed solid waste at landfills owned or that have been set ablaze
Departments that have or have used AFFF
- Airports:Airports that have been used
- Landfills:Landfills that have been rehabilitated
Products containing PFAS in waste
Importantly, once PFOA or PFOS are officially designated by the EPA as such, they will be effective immediately.
CERCLA hazardous chemicals, this will allow the EPA to use
The legal authorities of CERCLA106 are responsible
Parties, including the owners and operators of property or facilities
To take appropriate actions in response to PFOA or PFOS contamination
Address the contamination. The EPA can also use CERCLA
107 to recover its costs for responding from such responsible
parties to PFAS contamination. Private parties may also be affected by similar PFAS contamination.
Parties, environmental interests, state and local governments
CERCLA 107/113 will give you the legal tools to protect your rights.
Both cost recovery actions and contribution actions can be brought to your attention.
PFOA/PFOS investigation and remediation costs.
SPRING 2023: FINAL PFAS RULES
The EPA’s rulemaking activities for spring are geared towards the spring
2023 for publication a final rule recognizing PFOA/PFOS as
CERCLA hazardous substances. This will include standards.
Reportable quantities to determine the amount of PFOA
PFOS and PFOS when released or detected in the environment
The obligation to notify the federal government or other authorities is triggered
authorities. One of the actions that EPA has initiated is one
A component of a holistic approach is to regulating PFASs in all media.
As announced in the EPA’s October 2021 PFAS Strategy
The purpose of this article is to provide a general overview.
guide to the subject matter Expert advice should be sought
Learn more about your particular circumstances.
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