On August 26, 2022, the U.S. Environmental Protection Agency (EPA) issued a “Pre-Publication Notice” that proposes to list two PFAS compounds as “hazardous substances” under the “Comprehensive Environmental Response Compensation & Liability Act” (CERCLA), also known as the “Superfund” law. PFAS is an acronym for per- and polyfluorolalkyl substances, which are chemicals that were widely used from the 1960s to the early 2000s in the manufacture of a variety of consumer products, such as stain resistant carpets, non-stick cookware (e.g., Teflon), firefighting foam, food packaging (e.g., microwave popcorn bags/pizza boxes), water resistant clothing (e.g., pre-2000 GoreTex), water resistant repellent (e.g., Scotchgard) and dental floss. While the manufacture of PFAS compounds has largely been phased out in the U.S., these compounds are still used in the manufacturing of many products worldwide, and products containing PFAS are still imported to the U.S.
These substances, known as “forever chemicals,” have received considerable attention by federal and state environmental regulatory agencies because of their resistance to chemical breakdown due to the chemical bond between carbon and fluorine atoms in the PFAS compounds, which is one of the strongest in nature. Because of this, humans can still be exposed to PFAS long after the chemicals were released into the environment.
The compounds that are proposed to be listed as hazardous substances under CERCLA include, perfluorooctanoic acid (PFOA) and perflourooctane sulfonic acid (PFOS), which are two of the most common PFAS chemicals that have been historically used in numerous manufactured products. The proposed listing also includes the salts and structural isomers of these two compounds. The EPA plans to publish a formal “Notice of Proposed Rulemaking” regarding its plans to list these PFAS compounds as hazardous substances under CERCLA in the Federal Register within the next several weeks, and once it is published, there will be a 60-day public comment period.
One of the most immediate impacts of the adoption of these PFAS compounds as hazardous substances under CERCLA would be that detection of these compounds in the environment in excess of reportable quantities would require reporting of these compounds to the U.S. National Response Center and would give the EPA enforcement discretion under the CERCLA law to require investigation and/or cleanup of these chemicals. Another significant impact would require that Phase I Environmental Site Assessments (ESAs) that are conducted by environmental consultants pursuant to the American Society for Testing & Materials (ASTM) E1527 Standard Practice for Phase I ESAs and the EPA’s All Appropriate Inquiry (AAI) Rule, include a review of whether PFAS compounds have ever been stored, used or manufactured at a property, and, most important, whether the PFAS may have potentially impacted the property. At present, because the ASTM E1527 Standard Practice for Phase I ESAs and the AAI Rule requires a review only of CERCLA-listed hazardous substances, since PFAS are not currently listed as CERCLA hazardous substances, an inquiry whether these substances were stored, used or manufactured at a property is not required to be included in the scope of a Phase I ESA. It is also anticipated that if the EPA lists these PFAS compounds as hazardous substances under CERCLA, that states that do not currently regulate PFAS (a few states, such as Vermont and Michigan, have adopted regulatory-based standards for PFAS) will adopt similar laws that address PFAS.
David Ruetz has over 30 years of experience in the environmental field, including work as an environmental attorney, the President of an environmental consulting-engineering firm, an Administrative Director of a Governor-appointed natural resource Advisory Council, as an environmental scientist and as an aquatic biologist.
As an attorney, Dave has represented corporate, commercial and industrial clients regarding environmental due diligence and risk assessment in mergers and acquisitions and real estate transactions. He has represented clients...
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.
Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.
Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
The National Law Review - National Law Forum LLC 3 Grant Square #141 Hinsdale, IL 60521 Telephone (708) 357-3317 or toll free (877) 357-3317. If you would ike to contact us via email please click here.