under state law.Third, there may be a site where CECs and hazardous substances are comingled. Here, due to the comingling, response actions directed at the hazardous substances will necessarily require addressing the “associated” CECs and therefore be considered part of “all costs of removal or remedial action” or “any other necessary costs of response.” Thus, in this third scenario, PRPs will likely be liable for the cleanup of the CECs, too. Cf.United Nuclear Corp., 814 F. Supp. at 1558 (treating mine tailings that contained some hazardous substances in trace amounts as hazardous substances rather than pollutants or contaminants). If the CECs remain onsite, and if they are considered pollutants or contaminants, absent waiver, the CECs will have to be cleaned up pursuant to federal standards and more stringent promulgated state standards that are “legally applicable” to them or “relevant and appropriate under the circumstances” of their release or threatened release, known as ARARs. 42 U.S.C. §9621(d)(2)(A). If there are no ARARs, advisories, criteria, or guidance may be “considered” when selecting the remedy. 40 C.F.R. §300.400(g)(3).In summary, PRPs should pay close attention to the presence of CECs at sites and their spatial relationship with hazardous substances, if any, as this will affect their CERCLA liability and potential courses of action. We will continue tracking CEC and federal and state cleanup developments in the Corporate Environmental Law Blog.

EPA has stated that it anticipates issuing an Advance Notice of Proposed Rulemaking after the close of the upcoming comment period on PFOS and PFOA to seek public comment on whether other PFAS chemicals also should be designated as CERCLA hazardous substances. https://www.epa.gov/newsreleases/epa-proposes-designating-certain-pfas-chemicals-hazardous-substances-under-superfund. 42 USC § 9621(d)(1); 40 CFR § 300.415(j).https://pubs.acs.org/doi/10.1021/acs.est.2c02765. Id.

Relaxation of remedial standards if compliance “would result in greater risk to human health.” 42 U.S.C. § 9621(d)(4).Coastal Zone Management Act (CZMA) Allows the president to authorize federal actions that are inconsistent with state coastal plans if the president finds it is in the paramount interest of the country, or the secretary of commerce determines it is a matter of national security.

Relaxation of remedial standards if compliance “would result in greater risk to human health.” 42 U.S.C. § 9621(d)(4).Coastal Zone Management Act (CZMA) Allows the president to authorize federal actions that are inconsistent with state coastal plans if the president finds it is in the paramount interest of the country, or the secretary of commerce determines it is a matter of national security.