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On April 19, the U.S. Environmental Protection Agency (EPA) released its long-awaited final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The designation, which takes effect this summer, will provide a powerful tool for private actions under CERCLA, and will trigger additional release reporting requirements. It will also expand enforcement authority in states that regulate CERCLA-designated hazardous substances.
ICSC has opposed the rule, believing that CERCLA is not the right regulatory tool to address this important issue and that further clarifications are needed.
The Hazardous Substance designation of PFOA and PFOS has broad implications for cleanups and CERCLA liability and incorporates PFOS and PFOA into CERCLA’s strict, joint and several liability framework. This change grants EPA the power to investigate releases of PFOA and PFOS and compel passive receivers, including retail property owners, to remediate releases of PFOA and PFOS through the specific CERCLA enforcement provisions. Furthermore, many states include CERCLA hazardous substances under their cleanup statutes, meaning these states will now be able to require remediation of PFOA and PFOS under state law.
“Phase I Environmental Site Assessments are the foundation of environmental due diligence for real property transactions,” said ICSC Environmental and Land Use Policy Committee Vice Chair Larry Falbe. “The EPA's recent designation of PFOS and PFOA as CERCLA Hazardous Substances has the potential to upend the financing of property transactions due to the ubiquitous and pervasive nature of PFAS chemicals in the environment.”
Property owners should consider their portfolio of planned, active, and in some cases, closed remediation sites for potential implications, and companies may consider reviewing and updating their hazardous substance reporting and transportation protocols to address PFOA and PFOS as applicable.
For more information, please contact Abby Jagoda at ajagoda@icsc.com.