PFAS on the path to being desi...

PFAS on the path to being designated CERCLA “hazardous substances”—buyers and sellers beware.

By Kirk M. Tracy

EPA is taking action against “Forever Chemicals” on multiple fronts that will impact environmental regulation, investigation, and remediation at an unimaginable number of sites around the United States.  EPA has already established enforceable limits on six of these chemicals in drinking water and has in its sights the designation of certain of those chemicals as hazardous substances under Superfund law (the Comprehensive Environmental Response, Compensation, and Liability Act, “CERCLA”), with a final rule to be in place as soon as February 2024.

In March 2023, EPA proposed to establish legally enforceable levels for six polyfluoroalkyl substances (collectively known as “PFAS”) known to occur in drinking water.[1]  This will impact water utilities around the country.  While several states have already enacted drinking water standards for certain PFAS compounds,[2] including notification levels and response levels set by the California legislature,[3] other states such as Texas have no such drinking water regulations in place.[4]

Meanwhile, EPA is also pursuing rulemaking on certain of those chemicals to be designated as CERCLA “hazardous substances,” which could impact tens of thousands of contaminated sites around the country.[5]  For example, a public watchdog recently found that “more than 40,000 pounds of PFAS has been injected into more than 1,000 [oil and gas] wells across Texas,” potentially posing a risk to public health.[6]  Designation as a hazardous substance could lead current and prospective landowners into status as a responsible party for a site they otherwise thought had a clean bill of health—even potentially reopening sites that have already been “closed” after investigation and remediation of other contamination.

What are PFAS?

PFAS includes a group of thousands of compounds characterized by long carbon chains bonded with fluorine atoms.  They have been used in many industries for a wide range of purposes from coating nonstick cookware and food packaging (the most famous use is Teflon^®), to use in firefighting foams and misting for fume suppression in operations such as chrome plating.  But the same properties that make them so useful also make them very persistent in the environment—meaning they do not readily degrade (hence the nickname, “forever chemicals”).  As EPA states, “PFAS are widely used, long lasting chemicals, components of which break down very slowly over time.”[7]  Because of their widespread use and persistence, “many PFAS are found in the blood of people and animals all over the world and are present at low levels in a variety of food products and in the environment.”[8]  They are found in water, air, fish, and soil at locations seemingly everywhere.  They present an enormous problem not only because of their physical and chemical properties, but also because there are thousands of chemicals within the PFAS family, and they are found in many different consumer, commercial, and industrial products.[9]  This makes it very hard to study and assess potential risks to human health and the environment.

Further, remediation technology is still developing.  Due to the complex PFAS chemistry and properties, and the strong carbon-fluorine bond that is difficult to break, they are challenging to remediate.  As regulatory cleanup levels, testing capabilities, and technology evolve, this will be a changing field that is seemingly only in its infancy.  For technologies such as capture through activated carbon beds or membrane filtration, challenges will remain as to what to do with the spent filter material or process waste—for example, if PFAS chemicals are classified as CERCLA hazardous substances, such remediation waste must be handled under strict regulations.

CERCLA Rulemaking by EPA

EPA’s proposed rule to designate PFOA and PFOS as “hazardous substances” under CERCLA was submitted for publication in the Federal Register on August 25, 2022.[10] The public comment period closed on November 7, 2022, with EPA now reviewing the comments and assessing whether to modify the rule before issuing a final rule.

In February 2023, EPA also submitted a final proposal to the White House’s Office of Management and Budget (“OMB”) indicating it wished to publish in the Federal Register a notice of proposed rulemaking requesting public input on whether it should consider designating PFAS beyond just PFOA and PFOS as “hazardous substances” under CERCLA. On March 24, 2023, the OMB approved the proposal, signaling that EPA could open for comment the proposal of expanding the CERCLA PFAS scope.[11]  Accordingly, on April 13, 2023, EPA published an Advanced Notice of Proposed Rulemaking (“ANPRM”) in the Federal Register that seeks public comment on a proposal to list as “hazardous substances” the following additional PFAS: PFBS, PFHxS, PFNA, HFPO-DA, PFBA, PFHxA, and PFDA.[12]  EPA indicated that the seven PFAS were chosen based on available toxicity data for the chemicals.  On June 8, 2023, EPA published further notice that it is extending the comment period on the ANPRM by 60 days from June 12 to August 11, 2023.[13]  Current estimates of the timing for a final rule are by February 2024.[14]

Impacts of CERCLA Designation

Designating even just PFOA and PFOS as CERCLA hazardous substances would have enormous impacts across numerous industries.  Water utilities, waste management, landowners of all types, and many more businesses would potentially face a huge burden for cleaning up the pollution already known to exist, even if third parties are responsible for causing the pollution.  Once a substance is classified as a CERCLA “hazardous substance,” EPA can force responsible parties to either cleanup the polluted site or reimburse EPA for the full remediation of the site. The designation also triggers reporting requirements for companies—such reporting requirements do not currently exist.

New exposure to liability will arise for potentially responsible parties (including current and certain former landowners and operators) to assess under multiple federal and state laws.  Most directly, classification as a hazardous substance triggers potential CERCLA liability for investigation and remediation of these substances—but the level of required response can also be dependent on state and local regulators and what cleanup standards they publish and enforce.  New sampling and testing requirements will be implemented at many existing and new sites, with the possibility of reopening of sites where closure was previously obtained—such situations are certain to vary state by state and even county by county.  In Texas, for example, it is questionable if a former “Certificate of Completion” under the Voluntary Cleanup Program[15] would apply for these substances that may not have been on TCEQ’s radar during past investigation and remediation efforts.  The same is likely to be true in many other states.

For new property transactions, designated PFAS substances will be added to the list of items to consider in due diligence, such as performing Phase I Environmental Site Assessments and subsequent sampling at certain sites.  Regulatory uncertainty and challenges in determining exactly which chemicals were used at a site will cause headaches for decades.

As for Texas, the current focus is the impact of EPA’s proposed drinking water rulemaking.  This author is informed that the Texas Commission on Environmental Quality (“TCEQ”) is and will continue monitoring EPA’s activities discussed in their PFAS Roadmap, including future rulemakings that may impact the National Pollutant Discharge Elimination System (NPDES) and Public Drinking Water programs.  As a federally delegated program, TCEQ would be required to implement federal rules affecting these programs.  TCEQ presumably will develop drinking water standards and reporting requirements for public water systems (30 TAC Chapter 290) once EPA publishes final PFAS drinking water rules.  However, there is no monitoring requirement for PFAS in Texas at this time.  Regarding CERCLA hazardous substance designation, Texas, California, and all the rest will have to keep watching this space to see if such designation becomes final and whether there are any industry or other exemptions spawned from the public comment process.

[1] U.S. EPA, Per- and Polyfluoroalkyl Substances (PFAS), https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas (last updated June 6, 2023). The six chemicals are: perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), perfluorohexane sulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS).  A public hearing on the rulemaking was held May 4, 2023.   Recorded hearing video available at https://www.youtube.com/watch?v=WznQyNWGDbU. Comments closed May 30, 2023.

[2] JDSUPRA, PFAS Update: State-by-State Regulation of PFAS Substances in Drinking Water (March 4, 2022), https://www.jdsupra.com/legalnews/pfas-update-state-by-state-regulation-4639985/.

[3] The California Water Boards, PFAS: Per- and Polyfluoroalkyl Substances, https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/pfas.html (last updated Mar. 16, 2023).

[4] However, TCEQ set reference doses for 16 PFAS in June 2011, which were used to derive protective concentration levels (PCLs) to be considered in the Texas Risk Reduction Program (“TRRP”) for site remediation purposes.  See TCEQ, Perfluoro Compounds, https://www.tceq.texas.gov/downloads/toxicology/pfc (last modified Apr. 5, 2022); TCEQ, TRRP Protective Concentration Levels, https://www.tceq.texas.gov/remediation/trrp/trrppcls.html (last modified May 17, 2023).

[5] See Jay Peters & Denix Conley, Haley Aldrich, Article: What you need to know and do about PFAS regulations (Aug. 7, 2019), https://www.haleyaldrich.com/resources/articles/what-you-need-to-know-and-do-about-pfas-regulations/.

[6] The Texas Tribune, Thousands of pounds of “forever chemicals” have been injected into Texas oil and gas wells, study finds (Mar. 27, 2023), https://www.texastribune.org/2023/03/27/texas-fracking-oil-gas-wells-pfas-report/.

[7] U.S. EPA, PFAS Explained, https://www.epa.gov/pfas/pfas-explained (last updated Apr. 10, 2023).

[8] Id.

[9] Id.

[10] U.S. EPA, PRE-PUBLICATION NOTICE (Aug. 25, 2022), available at https://www.cmbg3.com/library/EPA-CERCLA-Designation-Proposed-Rule.pdf.

[11] OMB, View Rule: PFAS-Related Designations as CERCLA Hazardous Substances (RIN: 2050-AH25, Fall 2022), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202210&RIN=2050-AH25 (last visited June 22, 2023); PFAS CERCLA Designation May Expand, 13 National L. Rev. 173 (Apr. 24, 2023), available at https://www.natlawreview.com/article/pfas-cercla-designation-may-expand#:~:text=On%20August%2012%2C%202022%2C%20a,the%20required%20public%20comment%20period

[12] 88 Fed. Reg. 22399, available at https://www.federalregister.gov/documents/2023/04/13/2023-07535/addressing-pfas-in-the-environment.  Comments were due June 12, 2023.

[13] 8 Fed. Reg. 37841, available at https://www.regulations.gov/document/EPA-HQ-OLEM-2022-0922-0050.

[14] See OMB, View Rule: Designating PFOA and PFOS as CERCLA Hazardous Substances (RIN: 2050-AE87, Spring 2023), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202304&RIN=2050-AH09.

[15] See TCEQ, Voluntary Cleanup Program, https://www.tceq.texas.gov/remediation/vcp (last modified Mar. 14, 2023).