Emerging Regulation of Emerging Contaminants

The landscape of environmental law is ever-changing. As science and technology continue to advance, so too does the ability to detect and understand potential risks of chemicals in products commonly used by the public. Such developments often come decades after their initial discovery and use in innovative products. These chemicals are commonly referred to now as “emerging contaminants,” and increasing regulatory focus on them presents unique challenges for both regulators and the regulated community.

One group of chemicals that has garnered the attention of the public and regulatory agencies is per- and polyfluoroalkyl substances (PFAS). This group of over 9,000 chemicals has been used for decades in industrial and consumer products, thanks to their beneficial properties like heat and stain resistance. But the very properties that make PFAS useful also make them difficult to detect. As methodologies for detecting PFAS have improved in recent years, so too have concerns about their environmental persistence and potential impacts.

Under the Biden administration, the U.S. Environmental Protection Agency (EPA) is seeking to better understand and regulate PFAS. In October 2021, the agency published a PFAS Strategic Roadmap, laying out its plans for addressing PFAS through the year 2024. EPA, PFAS Strategic Roadmap (Oct. 18, 2021). The Strategic Roadmap emphasizes three general areas: researching PFAS effects and interventions, restricting PFAS from entering the environment, and remediating sites contaminated with PFAS.

Currently, EPA has articulated potential regulatory approaches to PFAS under multiple environmental statutes, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as Superfund) and the Resource Conservation and Recovery Act (RCRA). The agency’s plans under these statutes include novel actions that may steer the regulation of other products once thought to be outside the scope of hazardous material regulation but now targeted as “emerging contaminants,” including nanomaterials, microplastics, pharmaceuticals, personal care products, pesticides, and food additives, to name a few. EPA’s plans—and their ultimate results—are key issues for environmental practitioners to watch in the coming years.

Emerging approaches to addressing PFAS under CERCLA

CERCLA authorizes EPA to force landowners and other responsible parties to clean up (or reimburse the cleanup of) sites contaminated with “hazardous substances.” This defined list of substances does not currently include PFAS. EPA plans to change this.

In line with its Strategic Roadmap, EPA has proposed a regulation to designate two types of PFAS—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)—as hazardous substances under CERCLA. Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 87 Fed. Reg. 54,415 (Sept. 6, 2022). The proposal may foretell a new era of CERCLA. In the statute’s entire 40-year history, EPA has never promulgated a rule designating a new hazardous substance. This first-of-its-kind action could therefore pave the way for EPA to designate additional types of PFAS and other emerging contaminants as hazardous substances in the future.

This possibility has created concerns among the regulated community that their CERCLA liabilities potentially will be interminable. Not only is EPA expected to start forcing the cleanup of new sites, but EPA may seek to resume cleanups at sites long considered fully remediated.

CERCLA authorizes EPA to reopen sites and require additional remediation under certain circumstances. These generally include the following: (1) the discovery of liability-imposing conditions that were unknown at the time the site was closed, (2) the discovery of additional information revealing the remedy at a site has failed, and (3) the discovery during a mandatory five-year review that the selected remedy does not adequately protect human health and the environment. 42 U.S.C. §§ 9622(f)(6)(A), (C), 9621(c).

EPA’s PFAS Strategic Roadmap does not specifically announce any plans to use these reopeners. That said, one of EPA’s enumerated PFAS strategies is to “hold polluters accountable,” including “remediation where releases and exposures have already occurred.” EPA, PFAS Strategic Roadmap, at 7. If EPA chooses to employ these reopeners and finds success in so doing, the impacts will be profound.

According to EPA, PFAS have already been detected at 245 existing Superfund sites, including 14 sites that have been deleted from the National Priorities List (meaning EPA determined the response action at the site was complete and protective of human health and the environment). EPA, Superfund Sites with PFAS Detections Dataset (Feb. 18, 2022). Because PFAS were not historically investigated under CERCLA and were not even detectable with earlier technologies, this count may underrepresent the number of existing or closed CERCLA sites with the presence of PFAS.

To close this information gap, EPA has announced it “is conducting inspections, issuing information requests, and collecting data to understand the level of contamination and current risks posed by PFAS.” Id. at 22. EPA’s information-gathering authority is not limited to “hazardous substances” as defined in CERCLA, but also extends to “pollutants” and “contaminants” as well. 42 U.S.C. § 9601(4)(e). These terms are defined broadly to include “any element, substance, compound, or mixture” that “may reasonably be anticipated” to cause disease or death to any organism. Id. § 9601(33).

EPA maintains that PFAS can fit this definition. See, e.g., EPA, Support Document for the Revised National Priorities List Final Rule—Saint-Gobain Performance Plastics 14–15 (July 2017). According to the agency, exposure to certain concentrations of PFAS may have the potential to increase the incidences of some reproductive effects, cancers, and immunological problems. EPA, Our Current Understanding of the Human Health and Environmental Risks of PFAS (Mar. 16, 2022). Thus, EPA has reportedly been leveraging CERCLA to pursue information about PFAS releases. Furthermore, in May 2022, EPA added several PFAS to the list of screening levels it uses to assess risk at Superfund sites. EPA, EPA Adds Five PFAS Chemicals to List of Regional Screening and Removal Management Levels to Protect Human Health and the Environment (May 18, 2022).

Emerging approaches to addressing PFAS under RCRA

RCRA is also the focus of efforts to regulate PFAS in the environment. Where CERCLA generally provides authority for EPA to investigate and remediate sites where historic releases of “hazardous substances” have occurred, RCRA regulates the handling, treatment, and disposal of “hazardous waste” “from cradle to grave.” Under RCRA, EPA can regulate the generation, transportation, treatment, storage, and disposal of those materials deemed “hazardous waste”—a defined list of substances that does not currently include PFAS.

In June 2021, Governor Grisham of New Mexico petitioned EPA to change this. Letter from Governor Michelle Lujan Grisham to EPA Adm’r Michael S. Regan (June 23, 2021). She requested that EPA list the entire class of PFAS as hazardous waste, or, in the alternative, that EPA list specific PFAS including PFOS and PFOA.

When EPA issued its PFAS Strategic Roadmap several months later, the plan was notably devoid of any explicit strategies under RCRA. About a week after issuing its Strategic Roadmap, however, EPA responded to Governor Grisham’s letter stating that it would launch a rulemaking process to add PFOA, PFOS, and two other types of PFAS as “hazardous constituents.” Letter from EPA Adm’r Michael S. Regan to Governor Michelle Lujan Grisham (Oct. 26, 2021) (emphasis added). The listing of PFAS as “hazardous constituents,” rather than “hazardous wastes,” falls short of Governor Grisham’s request, and it would not trigger RCRA’s hallmark cradle-to-grave regulation. Still, the listing would enable EPA to force corrective action when these chemicals are released into the environment at treatment, storage, and disposal facilities. 42 U.S.C. § 6924(u).

Eight months after EPA’s announcement, no observable progress has been made toward a proposed “hazardous constituent” listing. In the meantime, EPA has hinted it might use a different RCRA authority to address PFAS. The agency’s Strategic Roadmap states, “When EPA becomes aware of a potential imminent and substantial endangerment situation where PFAS poses a threat to human health, the Agency will swiftly employ its expertise to assess the situation and take appropriate action, including using statutorily authorized powers.” EPA, PFAS Strategic Roadmap, at 20. Though EPA does not specify which statutes it is referencing here, one possibility is its authority to address “imminent and substantial” threats under RCRA section 7003 (42 U.S.C. § 6973). The statute authorizes EPA to initiate enforcement actions to address the “handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste [that] may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6973(a).

This provision may appeal to EPA because its scope is broader than other enforcement provisions of RCRA. RCRA regulation is generally limited to defined “hazardous wastes,” but EPA’s endangerment authority more broadly extends to “solid wastes,” which include any materials that are abandoned, recycled, or “inherently waste-like.” 40 C.F.R. § 261.2(a)(1). If PFAS are held to meet this definition, EPA could forge a path for addressing PFAS in the environment without the need for any regulatory changes wherever it finds the endangerment factors to be present.

EPA’s approach to PFAS is noteworthy even for those whose portfolios entirely exclude such compounds. Potential hazardous substance designations, reopeners, solid waste determinations, and endangerment findings could expand the reach of CERCLA and RCRA, with PFAS paving the way for more substances to come. Each step on EPA’s Strategic Roadmap for PFAS may foreshadow what is waiting on the horizon for these products—and for those, still unknown, following behind them.