For several years, many in the legal and environmental communities have wondered what the reach of enforcement by the EPA might be if the agency were to determine that per- and polyfluoroalkyl substances (PFAS) were hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or, more informally known as Superfund). EPA proposed Superfund designations in 2022 for two PFAS (perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)). Superfund provides a mechanism for the EPA to force the parties responsible for the contamination at a designated Superfund site to either perform the cleanups with EPA oversight or reimburse the EPA if the EPA leads the cleanup activities. To date, EPA has identified nearly 200 Superfund sites where PFAS are present.

In October, as reported by Inside EPA, EPA’s chief of the Resource Conservation and Recovery Office’s cleanup programs branch, Charlotte Mooney, spoke about PFAS at Superfund sites at the Association of State and Territorial Solid Waste Management Officials’ annual conference. During that session, Mooney confirmed that the EPA’s proposed designation of PFAS as a hazardous substance could lead the agency to reopen sites where cleanup had previously been considered complete. Mooney stated the analysis would be done on a “case-by-case basis” but the criteria for that analysis has not been disclosed to date.

Such a decision by the EPA to reopen these types of Superfund sites could have far-reaching impacts. But, the most significant question is who is the responsible party here. It has been long understood that the manufacturers of PFAS knew for many years of the potential for adverse environmental and human health effects and did not make that information publicly available. This meant that for many years, many users of materials containing PFAS had no idea of the potential adverse effects to which they may have been contributing. Additionally, due to the widespread detection of PFAS in the environment today, determining who handled the PFAS for a given potentially responsible party in the typical cradle-to-grave analysis performed under Superfund could be a gargantuan task. In the end, this may be an opportunity for a federal fix to this issue, similar to what is required for every barrel of oil sold in the United States (thanks to a fix to the federal law effective January 1, 2023): that any entity that has manufactured or chooses to manufacture the raw PFAS for sale in the United States must fund an account to provide for cleanup of that PFAS well into the future, even for sites where the EPA’s case-by-case analysis determines it should reopen past cleanup actions.