On August 26, 2022, the US Environmental Protection Agency (EPA) announced proposed rulemaking to designate two types of per- and poly-fluoroalkyl substances (PFAS) as “hazardous chemicals” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
PFAS are a class of man-made chemicals widely used as surfactants in industrial and consumer products, including but not limited to: firefighting foam, cosmetics, clothing, cookware, and carpeting. They are known for their bio-persistence, and, unlike most other chemicals, do not “break down” in the human body when consumed. The EPA’s proposal specifically applies to perfluorooctanoic acid (PFOA), and perfluorooctanessulfonic acid (PFOS), two of the most commonly used types of PFAS.
In the news release announcing the proposed rulemaking, the EPA states that its proposal “is based on significant evidence that PFOA and PFOS may present a substantial danger to human health or welfare or the environment.” The EPA goes on to claim: “PFOA and PFOS can accumulate and persist in the human body for long periods of time and evidence from laboratory and human epidemiology studies indicates that exposure to PFOA and/or PFOS may lead to cancer, reproductive, developmental, cardiovascular, liver, and immunological effects.”
While the language used by the EPA and other regulators strongly suggests to the public there is a medical consensus that PFAS exposure causes cancer and other adverse health effects, this is not the case. Despite the fact that PFAS have been widely and heavily used for decades in the United States, no epidemiological study to date has found a “causal effect”—versus an “association”—between PFAS exposure and cancer. A “causal effect,” in contrast to an “association,” is demonstrated where exposure to a particular substance shows a statistically significant increase in the number of certain health outcomes, such as cancer, as compared to what would be expected in a non-exposed population.
The EPA’s proposed designation of PFOA and PFOS as “hazardous substances” under CERCLA, if passed, is significant for a number of reasons. Companies who continue to manufacture and sell products containing PFOA or PFOS will be required to monitor and report releases of the chemical to the government, and will be regulated by the Department of Transportation under the Hazardous Materials Transportation Act.
Perhaps most significantly, designating both PFOA and PFOS as “hazardous” chemicals under CERCLA will lead to potentially limitless liability for some of the country’s biggest industries, including aviation, plastics, and oil. Under CERCLA, the Federal Government may order any party found responsible for contaminating land with a “hazardous” substance to pay for the costs of clean-up. The Federal government can—and more often than not does—cast a very wide net in assigning liability for the costs of remediating and/or removing hazardous substances from a designated site. For example, businesses or individuals may be apportioned liability under CERCLA simply for purchasing land known to be a source of prior contamination, for exercising “substantial control” over activities at the facility where the contamination occurred, or for transporting the hazardous substances. (Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp. (976 F.2d 1338 (9th Circ. 1992; US. v. Bestfoods, 524 U.S. 51 (1998)). CERCLA penalties may also be applied retroactively, meaning that those contributing to the use of PFAS at a designated site can be held responsible for all or a portion of the clean-up costs even if the contamination occurred prior to PFAS being listed as a hazardous substance, or even prior to the passage of CERCLA itself. (US v. Monsanto, 858 F.2d 160 (4th Cir. 1988).
It is important to note that the EPA’s proposed designation will not become effective immediately. The proposed rulemaking is subject to the delays of public notice and comments requirements of the Administrative Procedure Act. Finally, given the lack of medical consensus as to whether PFOA and PFOS cause disease, versus the high cost of remediation, it is almost certain that the proposed rulemaking will be challenged in court by one or more members of the affected industries.