Consistent with the U.S. Environmental Protection Agency’s (EPA) PFAS Strategic Roadmap, EPA is just weeks away from issuing a Notice of Proposed Rulemaking to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  EPA forwarded the proposed rule for White House Office of Management and Budget (OMB) review on January 10, 2022, triggering what is typically a 90-day review period.  If OMB completes its review without opposition, the proposed rule would be published for public comment, likely in April 2022. Based on that timing, issuance of a final rule is anticipated by Summer 2023.

Assuming OMB does not object to the proposed rule, EPA likely will determine reportable quantities (RQ) for releases of PFOA and PFOS as part of the process before implementation of a final rule. Until then, a default RQ of 1 pound would apply as a trigger for reporting requirements.

Assuming future promulgation as a federal rule, the designation of PFOA and PFOS as CERCLA hazardous substances would generally require a broad swath of manufacturing and other industries, federal facilities, and utilities to report releases above the respective RQs, and would give EPA the authority to require responsible parties to investigate and clean up such releases (and/or subject those parties to cost recovery claims), including at sites at which remedial actions are already underway for other contaminants of concern.  Beyond manufacturing and industrial sites where PFOA and PFOS may have been made or used, this could encompass sites where firefighting foams have been used, such as airports, military sites, refineries, and firefighting training facilities.  It could also encompass landfills and water treatment facilities that received waste or wastewater containing PFOA or PFOS, and thereby have potential CERCLA liability implications for anyone who sent such waste streams to those facilities.

Following a CERCLA hazardous substance designation, the presence of PFOA and PFOS at a site could support designation as a federal Superfund site; state cleanup responsibilities could be triggered as well. The Pennsylvania Hazardous Sites Cleanup Act (HSCA), for instance, defines a “hazardous substance,” in part, by incorporating substances designated under CERCLA.  Even previously closed sites could be subject to reopeners for PFOA and PFOS if designated as CERCLA hazardous substances.  In addition, a hazardous substance designation would allow parties who are conducting remediation for PFOA and PFOS to sue other potentially responsible parties for contribution for remediation costs.

For parties acquiring properties, the future designation of PFOA and PFOS as hazardous substances will result in the need for additional attention to PFAS in the due diligence process, to preserve statutory protections from liability.

Note too that unless and until EPA promulgates federal cleanup standards for PFOA and PFOS, it is likely that a hodgepodge of state-based standards and federal guidance will be considered as Applicable or Relevant and Appropriate Requirements (ARARs) for PFOA/PFOS site cleanups, depending on the site’s geographic location and affected media.

We expect there will be significant public comment on the proposed rule once published.