EPA Moves Towards Proposed Rule on CERCLA PFAS Listing

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Earlier this month, the U.S. Environmental Protection Agency (“EPA”) submitted a proposed rule to the White House Office of Management and Budget (“OMB”) to designate perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). This marks the next step in the EPA’s efforts towards regulating and remediating per-and polyfluoroalkyl substances (“PFAS”) contamination around the country.

As detailed in EPA’s PFAS Strategic Roadmap and assuming OMB finalizes its review without significant delays, EPA intends to issue a proposed rule for public review and comment in the spring of 2022, with an eye towards issuing a final rule by the summer of 2023. The rulemaking process may be quite complicated, however, considering that EPA has never before designated any chemical as a CERCLA hazardous substance via the rulemaking process and given the political and media attention to these issues.

A final designation of PFOA and PFOS as CERCLA hazardous substances could have significant impacts, including:

  • CERCLA National Priorities List (“NPL”) designation of new CERCLA Superfund sites where PFOA and PFOS contamination is present;
  • New investigation and remediation requirements at existing Superfund sites;
  • Efforts by EPA and state environmental agencies to “reopen” sites where remediation has already been completed in order to require the remediation of remaining PFOA and PFOS;
  • New release reporting requirements under CERCLA and analogous state laws that rely on CERCLA’s hazardous substances list to determine when releases must be reported;
  • New litigation brought by EPA, state agencies, private parties and PFAS-affected governmental entities looking to recover remediation costs or require that potentially responsible parties (“PRPs”) contribute to future remediation activities; and
  • New litigation brought by drinking water utilities and wastewater treatment facilities seeking recovery from PRPs of significant long-term costs for PFAS treatment and disposal.

Potentially affected entities should be taking steps now to prepare for the EPA rulemaking process and eventual listing of PFOA and PFOS as CERCLA hazardous substances. For example, entities should:

  • Assess current and historical uses and disposal practices of PFOA and PFOS products, including but not limited to the use of aqueous film-forming foams (“AFFF”) and other commonly used PFAS products, to determine potential risks for future CERCLA enforcement;
  • Assess existing and closed sites where the entity is or was a PRP to determine potential risks that EPA or a state environmental agency may seek to require new or modified investigation and remediation requirements at those sites;
  • Review EPA’s proposed rule and, if appropriate, participate in the process by submitting public comments and/or engaging in other stakeholder efforts; and
  • Consider the implications of these potential hazardous substance listings when performing environmental due diligence and crafting agreement terms to help safeguard against potential future liability.

EPA’s efforts to develop and enforce regulations concerning PFAS are, of course, not limited to the CERCLA context, and the anticipated proposed rule is being developed in parallel with other efforts, including those under the Resource Conservation and Recovery Act (“RCRA”). Additional background information regarding PFAS regulations and policies, including a discussion on potential RCRA impacts, is available via our recent alert on the topic.

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