On September 6, 2022, the United States Environmental Protection Agency (EPA) published in the Federal Register its proposal to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as “Superfund.” Comments to EPA’s rule proposal must be received on or before November 7, 2022. EPA anticipates the planned final rule for August 2023. Just a few weeks earlier on August 12, 2022, the Office of Management and Budget (OMB) concluded its review of the rule proposal and designated it “economically significant” which triggers a requirement for EPA to issue a regulatory impact analysis (RIA) that includes a broader look at the rule’s potential direct and indirect costs and benefits.
As discussed in a previous post, this designation, once finalized, will provide EPA the authority to require responsible parties under CERCLA to either investigate and cleanup a release of PFOA and PFOS or be subject to cost recovery claims for expenses incurred by EPA doing so. Responsible parties will also be able to seek contribution for costs incurred from other parties who may also be responsible for the contamination. At the state level, this designation will also result in liability under state superfund laws, such as the Pennsylvania Hazardous Sites Cleanup Act, that automatically incorporate “hazardous substance” designations under CERCLA.
Finally, once finalized, releases of PFOA or PFOS that meet or exceed the applicable reportable quantity (RQ) will also need to be reported to the National Response Center unless covered by an exemption. The proposed rule does not include a specific RQ for either PFOA or PFOS, meaning that, if finalized, the statutory default of one pound will apply under 42 U.S.C. 9602(b). EPA also announced on its webpage that it anticipates issuing an Advanced Notice of Proposed Rulemaking following the close of the PFOA/PFOS comment period to seek public comments on designating other PFAS chemicals as CERCLA “hazardous substances.”