EPA Proposes Designating PFOA and PFOS as Hazardous Substances Under CERCLA

The Environmental Protection Agency ("EPA") will accept public comments on its proposed regulation, which, if adopted, could increase reporting requirements and environmental cleanup costs for companies linked to these chemicals.

The EPA announced on August 26, 2022, a proposed rulemaking that would designate perfluorooctanoic acid ("PFOA") and perfluorooctanesulfonic acid ("PFOS"), including their salts and structural isomers, as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") (the "Proposed Rule"). 

Per- and polyfluoroalkyl substances ("PFAS"), including PFOA and PFOS, are synthetic chemicals with wide commercial and industrial applications, including firefighting foams, greaseproof food wrapping, nonstick cookware, water-repellent fabrics, carpets, and textiles. In June 2022, the White House indicated that it would address the potential presence of PFAS in drinking water through a variety of regulatory and enforcement mechanisms, including the designation of PFOA and PFOS as hazardous substances under CERCLA, as part of EPA's PFAS strategic roadmap published in October 2021.  

CERCLA, also known as "Superfund," authorizes the federal government to take response actions at contaminated sites to reduce the risk of releases of hazardous substances, or to order potentially responsible parties ("PRPs") to do or pay for that work. PRPs may include current and former site owners and operators as well as certain generators and transporters of hazardous substances. 

Under CERCLA, any person in charge of a facility or vessel must immediately report a release of a hazardous substance at or above its reportable quantity to federal, state, tribal, and local authorities as soon as they have knowledge of any such release. EPA proposes a reportable quantity of one pound or more in a 24-hour period for PFOA and PFOS. Additionally, a CERCLA hazardous substance designation would trigger additional reporting requirements under the Emergency Planning and Community Right-to-Know Act ("EPCRA"). EPCRA mandates reporting requirements on the storage, usage, and release of CERCLA-designated hazardous substances, including follow-up written reporting within 30 days of a reportable release. 

The Proposed Rule could have significant and costly consequences on Superfund liability. On June 8, 2022, the U.S. Chamber of Commerce released a report estimating the potential cleanup costs of PFOA and PFOS for PRPs at existing nonfederal national priority sites to total more than $17.4 billion. 

The Proposed Rule will be open to public comment for 60 days after publication in the Federal Register, which is expected in the coming weeks. EPA has also indicated that it intends to adopt additional PFAS regulations, including potential future designation of other PFAS as hazardous substances under CERCLA.

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