EPA announces proposed CERCLA rule for two PFAS

The EPA issued a proposed rule on August 26 that would list two PFAS (PFOA and PFOS) as “hazardous substances” under CERCLA. The proposed ruling would allow the EPA to hold companies financially liable for the cleanup of these PFAS that they released into the environment. It would also require stricter reporting of any environmental releases of these PFAS that exceed the default level (one pound or more over a 24-hour period).

The cost associated with this proposed designation has been highly controversial; the Office of Management & Budget designated the proposed rule as “economically significant”, which would require the EPA to conduct a rigorous cost-benefit analysis. The EPA has countered this claim by arguing that they do not have to consider cost when making this decision because PFOA and PFOS meet the CERCLA standard for “substantial danger”.

The proposed ruling has been met with pushback from several industry groups, including water and wastewater utilities. In their press release, the EPA announced that their focus will be on “holding responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment,” and that they will “use discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination.”

The EPA announced that the proposed rule will be published in the federal register, but a pre-publication version is currently available on their website. Following publication, the EPA will ask for public comment for 60 days. There will be a public comment period lasting for 60 days that will begin following publication of the proposed rule.