EPA Proposes Designating Certain PFAS Chemicals as Hazardous Substances Under Superfund

The proposal would designate the two most widely used per- and polyfluoroalkyl substances — perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) — under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). If finalized, it would require releases of one pound or more within a 24-hour period to be reported, which the EPA said would provide it with better data as well as the option to require cleanups and recover costs.

The EPA will next publish the rule, which will trigger a 60-day public comment period. The agency also anticipates issuing a separate notice after the close of the comment period seeking comment on the possibility of designating other PFAS chemicals as hazardous substances. The EPA said it expects to propose national drinking water regulations for PFOA and PFOS by the end of the year, with a final rule expected in 2023 though that timeline will likely be delayed. OMB has already deemed EPA's plans to be economically significant, with impacts projected to exceed $100 million, which means EPA will have to conduct a regulatory impact analysis which will open up the proposed rule to further input.

If the proposed rule is finalized, property owners, essential utilities, and individuals may be liable for unknowingly having PFAS on their land, even if it was there years or even generations prior to ownership and came from an unknown source. However, EPA has said during consideration of the rule it will conduct outreach with impacted communities, wastewater utilities, businesses, and farmers. EPA also emphasized that it is not prioritizing smaller-scale polluters that may have unknowingly released the chemicals but is instead targeting those who have manufactured and released significant amounts of PFOA and PFOS into the environment.

Contact APWA Government Affairs Manager Ryan McManus at rmcmanus@apwa.net or (202) 218-6727 if you have questions.