EPA Proposes Designating Certain PFAS Chemicals as Hazardous Substances Under Superfund

The US Environmental Protection Agency (EPA) has proposed that it will designate two of the most widely used per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This rulemaking would increase transparency around releases of these harmful chemicals and help to hold polluters accountable for cleaning up their contamination, according to the agency.

The proposal applies to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, and is based on significant evidence that PFOA and PFOS may present a substantial danger to human health or welfare or the environment, said the agency.

PFOA and PFOS can accumulate and persist in the human body for long periods of time and evidence from laboratory animal and human epidemiology studies indicates that exposure to PFOA and/or PFOS may lead to cancer, reproductive, developmental, cardiovascular, liver, and immunological effects.

“Communities have suffered far too long from exposure to these forever chemicals. The action announced today will improve transparency and advance EPA’s aggressive efforts to confront this pollution, as outlined in the Agency’s PFAS Strategic Roadmap,” said EPA Administrator Michael S. Regan. “Under this proposed rule, EPA will both help protect communities from PFAS pollution and seek to hold polluters accountable for their actions.” 

If finalized, the rulemaking would trigger reporting of PFOA and PFOS releases, providing EPA with improved data and the option to require cleanups and recover cleanup costs to protect public health and encourage better waste management.

It would also improve EPA, state, Tribal nation and local community understanding of the extent and locations of PFOA and PFOS contamination throughout the country and help all communities to avoid or reduce contact with these potentially dangerous chemicals. 

EPA is focused on holding responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment. EPA will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination. EPA is also committed to doing further outreach and engagement to hear from impacted communities, wastewater utilities, businesses, farmers and other parties during the consideration of the proposed rule.

If this designation is finalized, releases of PFOA and PFOS that meet or exceed the reportable quantity would have to be reported to the National Response Center, state or Tribal emergency response commissions, and the local or Tribal emergency planning committees. A release of these or any other hazardous substance will not always lead to the need to clean up or add a site to the National Priorities List (NPL), liability or an enforcement action. EPA anticipates that a final rule would encourage better waste management and treatment practices by facilities handling PFOA or PFOS. The reporting of a release could potentially accelerate privately financed cleanups and mitigate potential adverse impacts to human health and the environment.

Additionally, the proposed rule would, in certain circumstances, facilitate making the polluter pay by allowing EPA to seek to recover cleanup costs from a potentially responsible party or to require such a party to conduct the cleanup. In addition, federal entities that transfer or sell their property will be required to provide a notice about the storage, release, or disposal of PFOA or PFOS on the property and a covenant (commitment in the deed) warranting that it has cleaned up any resulting contamination or will do so in the future, if necessary, as required under CERCLA 120(h).

EPA will be publishing the Notice of Proposed Rulemaking in the Federal Register in the next several weeks. Upon publication, EPA said it welcomes comment for a 60-day comment period.

As a subsequent step, EPA anticipates issuing an Advance Notice of Proposed Rulemaking after the close of the comment period on today’s proposal to seek public comment on designating other PFAS chemicals as CERCLA hazardous substances.