On Friday April 19, 2024, EPA finalized a rule designating two “widely used” per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, the chemicals perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) will now be listed hazardous substances under CERCLA. Chemicals not on the CERCLA hazardous substance list are still actionable under the law, but only if they meet certain criteria to be deemed characteristic hazardous substances or were otherwise on one of several statutorily defined hazardous substance lists. By listing PFOS and PFOA on the CERCLA hazardous substance list, EPA is making it easier to take action under CERCLA against alleged releasors of PFOA and PFOS. Additionally, the rule will require the immediate report of any releases of PFOA and PFOS that exceed one pound, and federal entities transferring property will be required to disclose the storage, release, or disposal of PFOA and PFOS on the property and guarantee any related contamination on the property either has been or will be cleaned up.
This rule follows a string of recent PFAS actions by the Biden EPA, including recent standards for PFAS contamination in drinking water, the addition of seven PFAS to require toxic release inventory reporting obligations, and a final rule preventing companies from starting or resuming the manufacture or processing of 329 separate PFAS deemed inactive under TSCA without complete EPA review and risk determination. These and other PFAS-related actions are part of the Biden Administration’s focus on PFAS pollution, as laid out in EPA’s 2021 PFAS Strategic Roadmap.
For further information you can read about What EPA Designation Of PFAS As Hazardous Means For Cos. – Law360 by Larry Silver and Tarek Saba or PFAS Enforcement Discretion and Settlement Policy Under CERCLA.
Update written by Wade M. Stephens.