EPA Takes First Step To Designate PFAS As Hazardous Chemical Under CERCLA

• Published date: 26 September 2022
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Chemicals
• Law Firm: MG+M The Law Firm
• Author: Carrie S. Lin and Max Swetman

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...