EPA Finalization of PFAS Testing Method Paves Way for Federal "Hazardous Substance" Designation under CERCLA

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A few weeks ago, the federal Environmental Protection Agency (“EPA”) finalized Method 1633, an environmental sampling method for analyzing up to 40 target per- and polyfluoroalkyl substances (“PFAS”) in soil, groundwater, and other environmental media. This technical development represents a crucial milestone in EPA’s plan to designate certain PFAS as hazardous substances under the federal Superfund law (the Comprehensive Environmental Response, Compensation and Liability Act, or “CERCLA”), which is currently anticipated to occur in March of this year. This designation will trigger the evaluation of PFAS in all Phase I Environmental Site Assessments prepared in connection with environmental due diligence, and commercial real estate professionals should prepare for this development to occur without further delays.

Although EPA initially anticipated designating certain PFAS under CERCLA by the spring of 2023, this timetable has been repeatedly pushed back over the past year. A common criticism of EPA's proposed designation was the lack of a finalized, EPA-approved method to sample soil and groundwater for PFAS (as other finalized methods were limited to media less relevant in the context of CERCLA). In responding to these criticisms, EPA representatives at times indicated that the designation of PFAS under CERCLA was not anticipated to occur before the finalization of Method 1633, which has existed in draft form for multiple years.

Method 1633’s recent finalization may suggest that further delays are unlikely. Accordingly, those in the commercial real estate industry and environmental practices should prepare for EPA's designation of certain PFAS under CERCLA to occur within the coming months, if not sooner.

The EPA’s Office of Water, in partnership with the Department of Defense’s (DoD) Strategic Environmental Research and Development Program, has published Method 1633, “Analysis of Per- and Polyfluoroalkyl Substances (PFAS) in Aqueous, Solid, Biosolids, and Tissue Samples by LC-MS/MS,” a method to test for 40 PFAS compounds in wastewater, surface water, groundwater, soil, biosolids, sediment, landfill leachate, and fish tissue.

https://www.epa.gov/cwa-methods/cwa-analytical-methods-and-polyfluorinated-alkyl-substances-pfas#method-1633

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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