On August 26, 2022, the U.S. Environmental Protection Agency (EPA) announced proposed regulations 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 synthetic chemicals widely used as surfactants in industrial and consumer products, including but not limited to: fire-fighting foam, cosmetics, clothing, kitchenware, and carpets. . They are known for their bio-persistence and, unlike most other chemicals, do not “break down” in the human body when consumed. The EPA proposal applies specifically to perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), two of the most commonly used types of PFAS.
In the press release announcing the proposed rule, the EPA says its proposal “is based on significant evidence that PFOA and PFOS may pose a substantial hazard to human health or well-being or the environment.” . The EPA goes on to state, “PFOS and PFOS can accumulate and persist in the human body for long periods of time, and evidence from laboratory studies and human epidemiology indicates that exposure to PFOA and/or PFOS can cause cancer, reproductive, developmental, cardiovascular, hepatic and immunological effects.
While the language used by the EPA and other regulators strongly suggests to the public that there is a medical consensus that exposure to PFAS causes cancer and other adverse health effects, it 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” – as opposed to an “association” – between exposure to PFAS and the cancer. A “causal effect”, as opposed to an “association”, is demonstrated when exposure to a particular substance shows a statistically significant increase in the number of certain health problems, such as cancer, compared to what would be expected in a environment not exposed population.
The EPA’s proposed designation of PFOA and PFOS as “hazardous substances” under CERCLA, if adopted, is important for a number of reasons. Companies that 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 Transport under the Transportation of Materials Act. dangerous.
Perhaps most importantly, the designation of PFOA and PFOS as “hazardous” chemicals under CERCLA will result in potentially unlimited liability for some of the nation’s largest industries, including aviation, plastics and petroleum. Under CERCLA, the federal government can order any party found responsible for contaminating land with a “hazardous” substance to pay cleanup costs. The federal government can – and most often does – cast a very wide net by assigning responsibility for the costs of remediation and/or removal of hazardous substances from a designated site. For example, companies or individuals may be assigned liability under CERCLA simply for purchasing land known to be a source of past contamination, for exercising “substantial control” over the operations of the facility or contamination has occurred or for the transport of hazardous substances. (Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp. (976 F.2d 1338 (9th Circ. 1992; US. v. Bestfoods, 524 US 51 (1998)). CERCLA penalties can also be applied retroactively, which means that those contributing to the use of PFAS at a designated site may be liable for all or part of the cleanup costs, even if the contamination occurred before the PFAS was listed as a hazardous substance, or even before the passage of CERCLA itself (United States v. Monsanto, 858 F.2d 160 (4th Cir. 1988).
It is important to note that the designation proposed by the EPA will not take effect immediately. The proposed regulations are subject to the public notice periods and comment requirements of the Administrative Procedure Act. Finally, given the lack of medical consensus on whether PFOA and PFOS cause disease, compared to the high cost of remediation, it is almost certain that the proposed regulations will be challenged in court by one or several members of the industries concerned.