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October 11, 2022

CSG Law Alert: Upcoming Deadline for Commens to USEPA's Proposed Rule Designating PFOA and PFOS as CERCLA Hazardous Substances

On September 6, 2022, the United States Environmental Protection Agency (USEPA) published a proposed rule to designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund.

These two per- and polyfluoroalkyl substances (PFAS) have been linked to various adverse health effects, including cancer, and can accumulate and persist in the environment and human body for long periods of time (hence their nickname as “forever” chemicals). PFOA and PFOS have historically been found in various consumer products, such as fabrics and nonstick products; food packaging and cookware; and used in firefighting at airfields or as part of industrial processes.

CERCLA, or the Superfund, seeks to remediate contamination from the release of hazardous substances and provide for cleanup cost recovery. Depending on the circumstances, the USEPA can move forward in responding to a hazardous waste spill, or require private parties to undertake and pay for cleanups. The USEPA and private parties incurring response costs can pursue cost recovery from other potentially responsible parties.

The USEPA’s proposed rule would include PFOA and PFOS in the list of regulated hazardous substances set forth in CERCLA section 102(a), which in turn would facilitate the response and cost recovery for cleanups of these substances. The proposed rule would require that vessels and facilities immediately report unpermitted releases of PFOA and PFOS to government agencies when such releases are at or above a reportable quantity (currently set as 1 pound or more in a 24- hour period). The proposed rule states that this reportable quantity may be modified once the USEPA has collected more data on releases and the resulting risks of human health and the environment. Furthermore, the USEPA states that the proposed rule would also require the United States Department of Transportation to list and regulate PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act.

The deadline for the public and stakeholders to submit comments to the proposed rule is currently set to expire on November 7, 2022. The USEPA anticipates promulgating a final rule in August 2023.