EPA Proposes “Superfund” Designation of PFOA and PFOS

On September 6, 2022, EPA published its long-awaited proposed designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The hazardous substance designation triggers a reporting requirement to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity of 1 pound or more in a 24-hour period. The proposed rule is likely to impact a wide range of entities including manufacturers (including importers and importers of articles), processors, other downstream product manufacturers and users, and waste management and wastewater treatment facilities. 

The agency only includes the direct cost of the reporting requirement noted above for industry. However, the agency includes a qualitative discussion of what the agency is describing as indirect costs that include clean up and recovery costs from contaminated sites. EPA has stated its belief that the rule will not have a significant economic impact on a substantial number of small entities based on the direct costs.  However, ILTA believes that the rule will impose significant costs that the agency judges to be “indirect.”  These costs could include remediation to remove PFAS from terminal facility sites.

Comments on the proposed rule are due November 7.  ILTA is developing comments for this rule in consultation with the membership.  If you would like to be involved in reviewing the comments, please contact Michael Stroud at mstroud@ilta.org.