August 2022 PFAS Update: U.S. EPA's Proposed CERCLA Rule, New Developments, and Consequences of Drinking Water Health Advisories

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

U.S. EPA Announces Proposed Rule to Designate Certain Compounds as CERCLA Hazardous Substances, New Scientific Developments, and Consequences of U.S. EPA’s Drinking Water Health Advisories

Significant new developments regarding per- and polyfluoroalkyl substances (PFAS) contamination have been announced in recent weeks. The headline federal development occurred on August 26, 2022, with the US Environmental Protection Agency’s (EPA) proposal to designate the PFAS compounds perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Also, following the release of new drinking water health advisories by EPA in June 2022, new scientific studies have found that the problem of PFAS contamination is worse than previously believed. But, these studies also have pointed to potential remedial solutions. Although regulation of PFAS has gradually increased at the federal and state levels, the absence of comprehensive federal regulation has continued to engender disputes concerning the cleanup of PFAS contamination.

EPA Has Proposed to Designate PFOS and PFOA as Hazardous Substances Under CERCLA

On August 26, 2022, EPA announced its long-awaited plan to designate PFOS and PFOA as hazardous substances under CERCLA. The Notice of Proposed Rulemaking will be published in the Federal Register during the next several weeks, which will start the 60-day comment period.[1]

The designation would have several significant effects. The pre-publication document lists three direct ones: “triggering reporting obligations when there is a release of PFOA or PFOS above the reportable quantity, obligations on the US Government when it transfers certain properties, and an obligation on the Department of Transportation to list and regulate CERCLA designated hazardous substances as hazardous materials.”[2]

The “reportable quantity” would be the statutory default of one pound.[3] Under CERCLA, the person in charge of a vessel or facility must report the release of hazardous substances at or above the reportable quantity to the National Response Center, allowing officials to respond if necessary.[4]

The federal government obligations regarding the transfer of properties are those imposed by 42 USC § 9620(h). That provision requires the agency selling or otherwise transferring the property to provide notice of the storage, release, or disposal of any hazardous substance on the property, as well as a covenant assuring that it has cleaned up or will clean up all resulting contamination.

The indirect effects of the designation are even more significant. In general, EPA has greater authority to respond to actual or threatened releases of “hazardous substances”[5] than “pollutants or contaminants.”[6] In the case of hazardous substances, EPA can conduct response actions without first establishing an “imminent and substantial danger,” and can recover cleanup costs from, or order cleanups by, potentially responsible parties.[7]

Also, the “hazardous substance” designation would enable affected private and public entities to recover cleanup costs from potentially responsible parties, particularly the military. Since the 1970s, PFOA and PFOS were contained in aqueous film forming foam (AFFF) used by the military to extinguish flammable liquid fires. Based on investigations conducted by the Department of Defense and others, there now are upward of 600 military bases nationwide where AFFF is believed to have contaminated potable water supplies on bases or in communities near such installations.

Not surprisingly, as the health issues related to PFAS have come to the fore, many lawsuits have been filed by states, individuals and others, including municipalities and water utilities, seeking to compel the cleanup by DOD of PFAS contamination, payment for natural resource damages, or reimbursement of costs incurred to filter PFAS compounds from the potable water supply, often caused by the use of AFFF at military bases.

These cases have been difficult to pursue against the military due to limits on available causes of action. For example, in a suit by individuals against the Navy seeking a medical monitoring remedy based upon alleged exposure to PFAS compounds from AFFF used at the Willow Grove Naval Air Station in Montgomery, Pennsylvania, the court ruled that the plaintiffs lacked a cognizable cause of action because PFAS had not yet been designated as a hazardous substance.[8] This jurisdictional obstacle will cease to exist, at least with respect to claims concerning PFOS and PFOA contamination, once EPA promulgates the proposed rule establishing those compounds are hazardous substances under CERCLA.[9]

Also under CERCLA, remedies selected by EPA to address hazardous substances must meet (unless waiver is justified by site-specific circumstances) “applicable or relevant and appropriate requirements“ (known as ARARs), which may include state laws.[10] Due to a void created by the absence of federal standards, a number of states have enacted their own laws and regulations establishing PFAS limits in various environmental media. Thus, once a final EPA rule designating PFOS and PFOA as hazardous substances is promulgated, consideration of state laws will be required, as applicable, in selecting site clean-up standards.

PFAS and Precipitation

According to a study by University of Stockholm researchers, published in August 2022, PFAS are present in rainwater almost everywhere in the world.[11] The study detected levels of PFOS and PFOA in precipitation in various places from 2010 to the present, including Antarctica, that are higher than EPA’s recently updated drinking water health advisories of 0.004 parts per trillion (ppt) for PFOA and 0.02 ppt for PFOS.[12] The Stockholm researchers note that the new health advisories themselves reflect a disturbing trend: “Guidelines in the US and Europe have been driven downward recently as a result of emerging evidence for the suppression of vaccine response in children.”[13]

As alarming are the study’s revelations, its future effects on law and policy are unclear. According to the study itself, “The US EPA health advisories seem not to be practically reachable without investment of huge cleanup costs in drinking water treatment plants given that most drinking water sources on the planet will have PFAS levels above the advisory levels.”[14] EPA had noted when it issued the health advisories that they were set at levels too low to reliably measure.[15] Nevertheless, when a form of pollution affects virtually the entire planet, at least some jurisdictions will consider making major resource commitments to address it.

PFAS and Liver Cancer

A study of blood samples by researchers at the University of Southern California and the Icahn School of Medicine at Mount Sinai in New York City, published August 8, 2022, found that high levels of PFOS were associated with increased risks of the liver cancer hepatocellular carcinoma.^[16] While previous animal studies had linked PFAS to liver cancer, this was the first study to clearly link any type of PFAS to liver cancer in humans.^[17]

The legal implications of this study appear more straightforward than those of the rainwater study: it will undoubtedly be cited by plaintiffs suffering from liver cancer allegedly caused by exposure to PFAS, especially PFOS.

A New Cleanup Method

A major aspect of the PFAS contamination problem has been the difficulty of disposing of PFAS safely and completely. The methods used, such as destruction of PFAS by incineration, have either been extremely expensive or produced localized air pollution. However, a study by American and Chinese scientists, published in Science on August 18, 2022, reported on discovering a method of using sodium hydroxide to break down several types of PFAS, including PFOA and GenX, into harmless substances.[18] While the method has not been shown to be effective yet against some other PFAS types, the cleanup of PFAS contamination may become easier to achieve.[19]

Military PFAS Cleanup and the New EPA Health Advisories

EPA’s drinking water health advisories have raised another issue discussed in our prior post: how will the advisories affect the military’s approach to PFAS cleanup at military bases?^[20] So far, the military seems to be ignoring the new health advisories. According to Steven Willis, the site manager for Wurtsmith Air Force Base in Michigan, speaking on August 17, 2022, the Air Force will apply Michigan’s less rigorous standards for cleanup of PFAS in groundwater instead of the health advisories: “Those EPA numbers are interim numbers; they are not enforceable. They are advisory numbers. So, at this point in time, we are not using them.”^[21] While Willis does not necessarily speak for the entire military, the Department of Defense generally has avoided making any commitments to implement the health advisories at military bases or surrounding communities.^[22]

Prior to the EPA’s issuance of the revised and new health advisories, the military had been reluctant to acknowledge the applicability of PFAS cleanup requirements under state law, which were more stringent than EPA’s prior health advisories of 70 ppt for PFOS and PFOA combined. In fact, it is engaged in ongoing disputes over states’ claims of authority over PFAS matters. For example, on August 18, 2022, a federal district court dismissed one such long-running case, a 2019 suit by the federal government arguing that New Mexico exceeded its authority when it sought to require cleanup of PFAS under the terms of a state hazardous waste permit issued to the Air Force base. Initially, the federal government argued that the state-granted permit exceeded the scope of the sovereign immunity waiver under the Resource Conservation and Recovery Act.^[23] Subsequently, the United States amended its complaint, though, removing the core of the sovereign immunity argument. The court, in dismissing the case, held that what remained of the case was an administrative appeal under a state law that, “by vesting exclusive jurisdiction for permit appeals in the New Mexico Court of Appeals, precludes other courts from adjudicating such claims.”^[24]

Once EPA promulgates final rules designating PFOS and PFOA, and perhaps other PFAS compounds, as hazardous substances, states will no longer be limited to identifying possible state law regulatory hooks to bring cleanup actions against the military. Rather, they can pursue PFAS remediation or reimbursement claims against the military under CERCLA.

Further Developments in Chemours’ Challenge to EPA’s GenX Health Advisory

EPA’s recent PFAS drinking water health advisories did not only address PFOS and PFOA; they included an advisory level of 10 ppt for GenX. As discussed in a previous posting, on July 14, 2022, Chemours, a manufacturer of GenX, petitioned the United States Court of Appeals for the Third Circuit to review the validity of EPA’s GenX health advisory.[25]

On August 12, 2022, seven environmental organizations and five individual North Carolina residents petitioned the Third Circuit to intervene on EPA’s side in Chemours’ challenge.[26] These parties seeking to intervene argued that they had an interest in the case because their members benefitted from the health advisory “through a Consent Order settling state-court litigation concerning Chemours’ discharge of GenX chemicals and other PFAS into the Cape Fear River.”[27] That Consent Order required Chemours “to provide alternate drinking water supplies to owners of certain private wells when GenX contamination exceeds 140 ppt or ‘any applicable health advisory, whichever is lower.’”[28] As EPA’s new GenX health advisory is only 10 ppt, Chemours objects to meeting the more stringent health advisory standard.

Towards Additional Regulation?

PFAS still are not comprehensively regulated, nor will they be after PFOS and PFOA are designated as hazardous substances. The proposed rule does not even apply to the other PFAS compounds for which EPA recently issued health advisories. Moreover, EPA has not proposed a National Drinking Water Regulation for PFOS and PFOA that will include enforceable maximum contaminant levels (MCLs), although it plans to propose such a rule later in 2022, to be finalized by the end of 2023. EPA also is considering taking similar regulatory action concerning other PFAS compounds.[29] While EPA is continuing to implement its PFAS Roadmap from October 2021,[30] the agency has missed several of its own deadlines for planned actions.[31]

Nevertheless, PFAS regulations still are advancing on other fronts. For example, at least 25 states have set standards for certain PFAS compounds in various environmental media, including drinking water MCLs in six states.[32] Also, ten states have passed laws banning the intentional inclusion of PFAS in food packaging. A similar measure at the federal level, the Keep Food Containers Safe From PFAS Act, passed the Senate Committee on Health, Education, Labor, and Pensions in June 2022.[33] It was introduced as an amendment to a bill renewing Food and Drug Administration fees. The House of Representatives version of the bill already had passed the House without the amendment. Thus, in addition to passing the full Senate, now the provision must survive a conference committee vote.[34]

[1] https://www.epa.gov/newsreleases/epa-proposes-designating-certain-pfas-chemicals-hazardous-substances-under-superfund.

[2] Proposed Rule (pre-publication version), available at https://www.epa.gov/system/files/documents/2022-08/FRL%207204-02-OLEM%20_%20Designating%20PFOA%20and%20PFOS%20as%20HSs%20_NPRM_20220823.pdf, 56; 42 USC § 9602-03.

[3] Proposed Rule at 56.

[4] 42 USC § 9603; 40 CFR Part 302.

[5] 42 USC § 9601(14).

[6] 42 USC § 9604(33).

[7] 42 USC § 9604; 40 CFR Part 300.

[8] Giovanni v. United States Department of the Navy, 433 F. Supp. 3d 736, 739-40 (E.D. Pa. 2020).

[9] EPA has stated that it anticipates issuing an Advance Notice of Proposed Rulemaking after the close of the upcoming comment period on PFOS and PFOA to seek public comment on whether other PFAS chemicals also should be designated as CERCLA hazardous substances. https://www.epa.gov/newsreleases/epa-proposes-designating-certain-pfas-chemicals-hazardous-substances-under-superfund.

[10] 42 USC § 9621(d)(1); 40 CFR § 300.415(j).

[11] https://pubs.acs.org/doi/10.1021/acs.est.2c02765.

[12] Id. We have previously discussed the drinking water health advisories at https://blog.sullivanlaw.com/enviroenergyinsights/pfas-update-july-2022-lawsuits-biosolids-regulation-and-new-drinking-water-health-advisories.

[13] https://pubs.acs.org/doi/10.1021/acs.est.2c02765.

[14] Id.

[15] https://www.epa.gov/sdwa/questions-and-answers-drinking-water-health-advisories-pfoa-pfos-genx-chemicals-and-pfbs.

[16] https://www.jhep-reports.eu/article/S2589-5559(22)00122-7/fulltext.

[17] https://cen.acs.org/environment/persistent-pollutants/PFAS-exposure-linked-liver-cancer/100/web/2022/08.

[18] https://www.bbc.com/news/science-environment-62561756; https://www.science.org/doi/10.1126/science.abm8868.

[19] https://cen.acs.org/acs-news/acs-meeting-news/Maybe-PFAS-arent-sturdy-previously/100/i30.

[20] https://blog.sullivanlaw.com/enviroenergyinsights/pfas-update-july-2022-lawsuits-biosolids-regulation-and-new-drinking-water-health-advisories.

[21] https://www.mlive.com/public-interest/2022/08/air-force-wont-use-new-epa-levels-in-wurtsmith-pfas-cleanup.html.