In the proposed rule, EPA outlines the limited direct effects of the proposal – Businesses must report releases of PFOA and PFOS of one pound or more within a 24-hour period; and transport substances or mixtures that contain PFOS or PFOA under DOT’s Hazardous Materials Regulations once DOT completes its listing. For businesses that already report under Toxic Release Inventory (TRI) and related Emergency Planning and Community Right-to-Know Act (EPCRA) and state reporting programs, this new reporting can be integrated into their current reporting. However, the designation may be surprising for businesses that do not typically have significant permitting and reporting requirements, and they will need advice and counsel regarding reporting protocols and requirements. Similarly, for businesses that import, distribute, or sell substances or mixtures that contain PFOS or PFOA, enforcement and liability consequences of transportation incidents may increase under a new DOT listing.

EPA describes as “indirect” the implications for remediation and liability for contamination, but “indirect” does not mean immaterial or insubstantial. Because the proposed designation lowers the threshold for EPA and states to commence remedial action, businesses linked to remediation sites are likely to see PFAS assessments required during CERCLA five-year reviews and state remediation evaluations. Also, because EPA and state agencies have substantial discretion as to which sites to prioritize, factors such as environmental justice discussed above may play more prominent role in prioritization.

A significant indirect implication of the proposed designation is the increased ability of regulators – federal and state – to request information about PFOS and PFOA from a wide range of industries. Businesses managing products and materials and their disposal may receive requests for information that require them to know whether and to what extent their products and operations involve PFAS compounds. It would not be surprising to see such requests in various permitting processes, either for new permits or renewals. Feedback approximately a year ago on EPA’s proposed PFAS reporting rule suggests that many businesses do not have the information needed to respond to such inquiries. EPA’s proposed designation provides yet one more driver prompting businesses in most industries to assess their PFAS profiles, and they would be wise to consult experienced counsel to assess their exposure and implement policies and strategies to mitigate that exposure.