On Friday August 26, 2022, the EPA issued a pre-publication version of a proposed rule designating two PFAS chemicals, PFOA and PFOS, as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). The 60-day public comment period on the proposed rule commences upon EPA’s publication of that rule in the Federal Register, which EPA anticipates will occur in the next few weeks.

From the 1950s to the early 2000s, PFOA and PFOS were the most used PFAS chemicals. Starting in the early 2000s, however, PFOA and PFOS were phased out in the U.S. and replaced by shorter-chain PFAS chemicals. Nonetheless, because of the decades-long widespread use of PFOA and PFOS, and the persistence of PFAS chemicals, PFOA and PFOS are still commonly found in the U.S. 

Studies have linked PFOA and PFOS to adverse health effects, including certain cancers (kidney and testicular), immune effects (decrease in antibody production and immunity), cholesterol changes, preeclampsia, thyroid disease, and ulcerative colitis.

Under the proposed rule, the EPA can seek to recover cleanup costs from a potentially responsible party or to require a potentially responsible party to clean up a site contaminated with PFOA or PFOS. Of particular concern is that sites that are or were previously designated as Superfund sites could be subject to additional review by the EPA and reopened by the EPA for investigation and remediation of PFOA or PFOS contamination.

The proposed rule also includes reporting requirements. Releases of PFOA and PFOS into the environment that exceed the reportable quantity (RQ is ≥ 1 lb.) must be reported to the National Response Center, state or tribal emergency response commission, and to local emergency responders within 24 hours of the release.

In anticipation of the EPA designating PFOA and PFOS as hazardous under CERCLA, last year Maine passed P.L. 2021, ch. 117, which provides that any substance defined as hazardous under CERCLA is a Maine hazardous substance regulated under the Maine Uncontrolled Hazardous Substance Sites Law. 38 M.R.S. § 1362(1)(H) (Superfund Law).

Thus, once EPA publishes a final rule designating PFOA and PFOS as hazardous under CERCLA, PFOS and PFOA will also be hazardous substances under Maine’s Superfund Law and subject to enforcement by the state under that law.