EPA Designates PFOA and PFOS as Hazardous Substances Under CERCLA

On April 19, 2024, the United States Environmental Protection Agency (EPA) issued a pre-publication notice regarding its designation of two per- and polyfluoroalkyl substance (“PFAS”) compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. EPA’s rule, for the first time, will subject a broad range of industries to potential liability for releases of PFOA and PFOS and impose the entire suite of CERCLA compliance obligations onto entities whose operations involve PFOA and PFOS. CERCLA establishes liability for current and former owners and operators of facilities where hazardous wastes were released or disposed, generators and arrangers of disposal or transportation of hazardous substances, and transporters of hazardous substances. Under the new rule, entities that handle PFOA and/or PFOS, including manufacturers, could face direct liability for the recovery and remediation costs of PFOA and/or PFOS. According to the pre-publication notice, the final rule will also impose stricter reporting requirements for releases and require compliance with federal law on transportation and disposal of PFOA and PFOS. The rule will become effective 60 days after it is published in the Federal Register. In addition, EPA issued a policy document that explains how and when EPA will exercise its discretion not to pursue potentially responsible parties (PRPs) that it deems did not play a significant role in releasing or exacerbating the spread of PFAS into the environment.

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