In a landmark regulatory move, the U.S. Environmental Protection Agency has taken decisive action to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the Superfund law. This final rule, issued just last Friday, marks a significant change in government response to these “forever chemicals.”

This action is separate and distinct from the April 10 PFAS drinking water standard final rule, this having dramatically larger impact.

PFOA and PFOS, members of the broader class of some 4,000 human made chemicals per- and polyfluoroalkyl substances (PFAS), have been extensively used in various industrial and consumer products for for more than 70 years due to their unique properties such as water and grease resistance. The highly persistent compounds that do not occur in nature have led to pervasive contamination of water sources and soil, posing serious health risks to humans.

Lest there be any question, this is a true bete noire where a peer reviewed 2020 study cited approvingly by the EPA describes 99.7% of Americans having detectable PFAS in their blood!

And this is a planetary problem, not a U.S. matter alone. Populations in nearly all industrialized nations have a PFAS blood level of at least 2 parts per billion.

“The science is clear that PFAS chemicals are linked to a wide range of health harms including cancer, damage to cardiovascular and immune systems, poor pregnancy outcomes, and effects on the developing child,” said EPA spokesperson Dr. Tracey Woodruff, of the University of California.

PFAS is no doubt a developing environmental catastrophe but this just announced EPA action listing PFAS as a hazardous substance in the U.S. is yeeting the matter without regard that this solution may do more harm than good.

The cleanup of contaminated sites under the more than 40 year old Superfund program, which already regulates more than 800 hazardous substances, is today incredibly bureaucratic and expensive and this will compound that many times over. There are many implications of this designation including that the federal government owns the most PFAS contaminated land and clean up costs for the federal government alone (.. okay, taxpayers) will be in the untold Trillions of dollars. It will also lead the Department of Transportation to list and regulate these substances as hazardous materials under the Hazardous Materials Transportation Act (e.g., will a shipment of Gore-Tex jackets require a manifest?).

A perplexing feature of the new rule requires entities to immediately report new releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound within a 24 hour period to the EPA and local emergency responders; a provision that would appear to add some teeth to the rule but for the fact that few if any heavily PFAS laden products are being produced in the U.S. today (e.g., when is the last time you bought a Teflon frying pan?).

The ASTM standard for the Phase l environmental site assessment process, which has been incorporated into Federal law, “to define good commercial and customary practice in the United States of America for conducting an environmental site assessment of a parcel of commercial real estate” will have to be promptly revised and altered to take into account the all but automatic recognized environmental condition (REC) finding for nearly every property. Sectors of the U.S. economy that own real estate must promptly begin to respond to this significant regulatory change.

EPA has a history of applying enforcement discretion policies and maybe more so than with any program in the Agency’s history, such will be of paramount import here where PFAS is already so widespread.

This administrative agency rule, which many have observed in being done before the Biden Administration runs out of time, carries with it a huge economic cost. Moving forward, policymakers, regulators, industry stakeholders, and the public will have to work collaboratively to develop effective strategies for reducing the ongoing use (.. yes, PFAS is still being utilized across the country) and clean up of PFAS, balancing those domestic aims with the resultant drag on the U.S. economy.

We have been engaged in providing legal services associated with environmental site assessments since the 1990s (.. for far more than just the commercial real estate sector although nearly every nonresidential real estate transaction involves an environmental site assessment that will be impacted by this changes) and this rule will greatly expand the need for that work by environmental attorneys.

EPA will publish the Final Rule in the Federal Register shortly. The rule will be effective 60 days after the rule is published.

I concluded a blog post when this final rule was first proposed in 2022, EPA Proposes Designating PFAS as Hazardous, “It may be the quintessential example of “if the only tool you have is a hammer everything looks like a nail,” but an after the fact hazardous substance designation will not repair the planet.”

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