EPA Releases Proposed Rule Designating Certain PFAS as CERCLA Hazardous Substances

Today the U.S. Environmental Protection Agency (EPA) released a pre-publication version of its long-awaited proposal to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  For the first time, EPA proposes to designate hazardous substances directly under CERCLA Section 102(a).  If finalized as proposed, this action would mean that the federal CERCLA liability and cost recovery scheme will apply to PFOA and PFOS.  In addition, any person in charge of a facility or vessel must report a release of 1 pound or more of PFOA or PFOS within a 24-hour period that does not fall within an exemption, such as federally permitted releases.

After considering the proposed rule for eight months, the Office of Management and Budget determined earlier in August that it should be designated as an “economically significant rule,” meaning it is expected to result in costs of $100 million or more annually.  The “economically significant” designation means that EPA must issue a regulatory impact analysis for the rule.

Because no substance has been designated in this manner before, EPA’s proposed rule includes the criteria it used to determine whether a listing was appropriate under Section 102(a).  These criteria could be applied to any future designation under Section 102(a), so potential stakeholders should not ignore the broad implications of the proposed rule because it relates to PFOA and PFOS.  The rule is expected to be published in the Federal Register in the next few days, triggering a 60-day comment period.

The pre-publication version of the rule is available here.