PFAS are “hazardous”, but they are not yet listed under CERCLA. On September 6, 2022, the Environmental Protection Agency (EPA) designated two per- and polyfluoroalkyl substances (collectively, PFAS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as the Superfund law, and anticipates publishing a final designation in the summer of 2023.1 Also, on February 2023, they submitted a final proposal to the White House indicating that it wishes to publish in the Federal Register a notice of proposed rulemaking on PFAS that will potentially add many more PFAS to the CERCLA list. With over 12,000 PFAS in existence according to the EPA and many of them in continued use to this day, the potential environmental pollution ramifications touch on countless industry types. There were more than 2,800 locations in the United States known to contain PFAS as of June 2022.2 Given PFAS near-ubiquitous presence, a final designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) could significantly increase the number and duration of investigation and remediation activities. Corporations, insurers, investment firms, and private equity alike must pay attention to this future potential change in law when considering risk issues.
How should environmental professionals respond and advise their clients on potential investigative activities, such as for Phase I Environmental Site Assessment (ESA)? The new standards (i.e., ASTM-E1527-21 Phase I ESA) have prompted many to recommend evaluate potential PFAS risks, particularly at sites located in states that already regulate PFAS and/or at sites that come with a heightened PFAS risk (e.g., fire training facilities and historic textile and metal finishing facilities). However, under the ASTM-E1527-21 standards, a review of potential emerging contaminants, such as per- and poly-fluoroalkyl substances (PFAs), remains at least for now outside of the scope of a Phase I ESA review, but these standards are currently being revised again to include emerging contaminants. So, what is the best course of action?
Let us know what you think in the comments below.
From the West…….
In 1986, California voters approved Proposition 65, an initiative to address their growing concerns about exposure to toxic chemicals, including PFAS. That initiative is officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986. The law requires California to publish a list of chemicals known to cause cancer or reproductive toxicity, and for businesses with 10 or more employees to provide warnings when they knowingly and intentionally cause significant exposures to listed chemicals.
This list currently includes more than 900 chemicals. Proposition 65 does not ban or restrict the sale of chemicals on the list. The warnings are intended to help Californians make informed decisions about their exposures to these chemicals from the products they use and the places they go.3
From the East……
The NJDEP issued a Statewide PFAS Directive in 2019 for PFOA and PFOS.4,5 It imposed significant requirements, including site-specific timeframes to investigate, cleanup and remove contamination. At a minimum, the person(s) responsible for conducting the remediation is required to evaluate whether there is the potential that PFOA and/or PFOS may have been manufactured, used, handled, stored, disposed or discharged at the site or area of concern.
- PFAS CERCLA Designation May Expand, National Law Review, (Monday, April 24, 2023), https://www.natlawreview.com/article/pfas-cercla-designation-may-expand
- PFAS Contamination in the U.S., Env’t Working Grp. (June 8, 2022), https://www.ewg.org/interactive-maps/pfas_contamination/
- California Office of Environmental Health Hazard Assessment, https://www.p65warnings.ca.gov/