EPA Proposes to Designate PFAS as Hazardous Substances

This summer, the EPA proposed it would designate two of the most common per- and polyfluoroalkyl substances as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The proposal applies to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). According to the EPA, if finalized, the rulemaking would trigger reporting of PFOA and PFOS releases, providing improved data and the option to require cleanups and recover cleanup costs to protect public health and encourage better waste management. The EPA’s proposal is part of its “PFAS Strategic Roadmap.”

CERCLA determines liability for addressing hazardous substances in the environment. Four categories of Potentially Responsible Parties (PRPs) can be held liable under the Act: (1) current owners and operators; (2) former owners and operators; (3) generators; and (4) transporters. CERCLA litigation often includes significant debate over apportioning site cleanup costs and the extent of remediation or removal requirements.

EPA’s proposed rulemaking would likely increase the number of civil environmental suits filed. The proposed designation would require reporting for every release of PFAS over a one-pound threshold over a 24-hour time period. This level of reporting will create loads of publicly available information and likely would lead to increased litigation over PFAS contamination. The EPA is expected to publish the Notice of Proposed Rulemaking in the Federal Register in the coming weeks. Upon publication, EPA will accept comments for a 60-day period.

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