EPA opens the Door to Widespread Liability to Businesses

EPA’s listing of two “forever Chemicals” as CERCLA hazardous substances will re-open sites that companies had thought were closed. And every user of a product that contained them may become responsible for a share of the remediation costs.

The EPA’s recent decision to put Perfluorooctanoic acid, or PFOA, and perfluorooctanesulfonic acid, or PFOS, on its list of hazardous substances under CERCLA means that many companies are once again liable for significant costs at sites where they had previously believed their liability exposure had ended.

The standard settlement agreements used by both States and the Federal government to resolve claims at superfund-type sites have, for many years, included provisions that they only covered “known” contamination. The class of chemicals generically referred to as “forever chemicals (of which there are literally thousands of varieties) was typically not even tested for, since it was not on the list of hazardous substances, and was likely never taken into consideration in designing the remedy. Thus, many old and closed sites are subject to being re-opened, because the potential contamination from these chemicals is unknown.

Ever since the supposed health risks from these chemicals first became a national issue a few years ago, many states, and the Federal government, have been pushing for these older sites to be re-opened and to be tested for their presence. However, those efforts became stymied when the Potentially Responsible Parties pointed out the fact that the government had no legal basis to require such testing. Now, such a basis exists.  

EPA Administrator Michael Regan  stated that “Designating these chemicals under our Superfund authority will allow EPA to address more contaminated sites, take earlier action, and expedite cleanups, all while ensuring polluters pay for the costs to clean up pollution threatening the health of communities.”  

On the flip side, the EPA tried to minimize the breadth of the impact of these rules on companies by issuing a CERCLA enforcement discretion policy that “EPA will focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties,” and by proclaiming that it does not intend to pursue certain parties such as farmers, municipal landfills, water utilities, municipal airports, and local fire departments.

Unfortunately for businesses, municipalities and utilities, this policy is A) not binding, B) does not apply to States (unless a particular State issues its own), and perhaps most importantly, C) does not prohibit the manufacturers and primary users from pursuing anyone they want to for contribution. So while the EPA may only sue the company that released a significant amount, the company they sued has every right to seek contribution from farmers, municipalities, utilities and anyone else who may have unwittingly and/or unknowingly released even tiny amounts of the chemicals.