On August 26, the EPA published a proposed rule that would designate PFOS and PFOA chemicals as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund”).

According to the EPA, the proposed rule would “increase transparency around releases of these harmful chemicals and help to hold polluters accountable for cleaning up their contamination.” If the rule is adopted, chemical manufacturers, end users and other responsible parties would be required to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity to the National Response Center, the appropriate state or Tribal emergency response commission, and local or Tribal emergency responders. 

Under CERCLA, the EPA would have much greater enforcement power to order clean-ups of PFOS and PFOA releases and compel responsible parties to pay for the costs of such clean-ups. The “hazardous substances” designation also would open the door for private parties to seek the recovery of the costs they incur in assessing and remediating the listed hazardous substances.

The EPA soon will open a 60-day window for the public to file comments on the proposed new rule.

The proposed rule is part of a comprehensive EPA campaign to limit the use of PFAS chemicals, of which PFOS and PFOA are two subcategories. Such chemicals often are called “Forever Chemicals” because they do not break down in the human body or the environment and the EPA links them to a number of health conditions. PFAS can be found in a wide range of consumer goods, from non-stick cookware to stain-resistant carpets.

For example, on June 15, the EPA announced new, lower interim lifetime Health Advisory Levels for two PFAS chemicals under its Safe Drinking Water Act (SDWA) authority, and first ever lifetime Health Advisory Levels for two additional PFAS. While the new Health Advisory Levels are non-regulatory and non-enforceable, these levels will likely be used as guidelines for the development of federal, state and local drinking water regulations.

In addition, the sweeping federal Infrastructure Investment and Jobs Act includes $10 billion to assist states and disadvantaged communities fund improvements needed to address PFAS in drinking water and wastewater discharges.