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Minimizing liability under impending ‘forever chemicals’ regulation

On Behalf of | Apr 13, 2022 | Environmental Law

Last year, the Environmental Protection Agency announced a new plan for the cleanup of potentially hazardous substances known as “forever chemicals.” This plan could lead to liability for some businesses.

The EPA plans to combat poly-fluoroalkyl substances, or PFAS, in progressive stages:

  • Research, which includes defining and categorizing individual PFAS to determine toxicity levels in pollution mitigation.
  • Restrict, through statutory action, the commercial and industrial uses or emissions of specified PFAS.
  • Remediate, with accelerated compliance by responsible parties, through treatment, disposal, destruction, or mitigation of PFAS contamination.

The designation of certain PFAS as well as PFOS, another class of highly toxic chemical compounds, as environmental and human health hazards will trigger several laws, including the Clean Water and Clean Air Acts, to regulate and compel responsible parties to comply with cleanup and mitigation efforts.

The role of the Superfund statute in compliance and remediation issues

The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), also known as the Superfund Statute, has been the mechanism by which the EPA recoups the cost of cleanup and toxic waste disposal efforts. By compiling a Toxics Release Inventory of designated hazardous substances, the EPA requires facilities that manufacture, process, or use such substances above a threshold amount to track and record them as part of its stringent reporting system.

A CERCLA hazardous substance designation may create problems for numerous businesses that fall within the area of a CERCLA contamination site. This can also include responsible parties that stored, generated, or transported hazardous materials or waste that has percolated into aquifers and other public drinking water sources, triggering the related Resource Conservation and Recovery Act (RCRA).

Minimizing risk and legal expenses

Although the EPA is responsible for the cleanup of contaminated waterways and Superfund properties, it is the triggering of numerous related statutes that creates liability for companies that the EPA has labeled responsible parties in CERCLA site remediation.

The potential for extended and costly litigation not only affects these businesses, but also any other parties in the chain of title of designated CERCLA land. While it is advisable for affected businesses to have insurance coverage to help with liability defense, it is also essential for parties to develop effective legal strategies that will minimize their liability and provide effective alternatives for relief.