January 13, 2022

EPA Proposes First Hazardous Substance Designation for Two PFAS Chemicals

The Environmental Protection Agency (EPA) is kicking off 2022 — a year expected to be particularly active for the regulation of per- and poly-fluoroalkyl substances (PFAS) — by moving forward with one of the agency’s keystone measures laid out in the PFAS Roadmap.

On Monday, January 10, EPA sent a first-of-its-kind proposed rule to the White House Office of Management and Budget (OMB) for review. EPA proposes to designate two specific types of PFAS, known as perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability (CERCLA) Act. The designation of PFOA and PFOS as hazardous substances through CERCLA is not unexpected — and we have previously advised the regulated community to begin preparing for this action and assessing their pending regulatory risk.

CERCLA, also known as “Superfund,” is a federal, strict liability statute and a powerful enforcement tool used by regulators to order cleanups and seek reimbursement for costs. It also allows private parties who have conducted their own remediation to sue other potentially responsible parties for their cleanup costs.

On a broad level, the proposed rule requires federal facilities, utilities, manufacturers and companies across various industries to report releases of PFOA and PFOS above specific thresholds. Those entities could also be required to disclose the location and extent of such releases. Furthermore, the proposed rule gives EPA and related authorities the ability to demand remedial actions and recovery costs from responsible parties.

This proposed rule may impact any business that ever used PFOA or PFOS in its products or owns property where these substances were used in the past. The proposed rule could routinely require investigations into PFOA or PFOS at sites currently conducting remediation for other substances. In addition, it could reopen cleanup sites across the country that long ago achieved closure.

In addition to assessing current compliance measures and regulatory exposure, the regulated community should consider comment submissions, particularly on the issue of risk assessments. Currently, EPA has a published drinking water health advisory for PFOS and PFOA, but there is no federal guidance addressing soil or groundwater cleanup. Further, potential commenters may want to consider addressing whether certain state PFOA and PFOS standards should be considered Applicable or Relevant and Appropriate Requirements (ARARs).

Monday’s submittal indicates that EPA is currently on track with at least one of the proposed actions put forth in the PFAS Roadmap released in October of 2021 and the PFAS Action Plan issued by the last administration. Both plans specified that the Office of Land and Emergency Management would undertake a proposed rulemaking on designating PFOA and PFOS as hazardous substances by the spring of this year. At a hearing held by the Senate Committee on Environment and Public Works in October, Office of Water Assistant Administrator Radhika Fox confirmed that the agency was in the process of developing the proposal.

In addition to keeping a close watch for the Notice of Proposed Rulemaking later this spring, impacted parties should be aware that the EPA is expected to soon issue an Advanced Notice of Proposed Rulemaking seeking input regarding potential CERCLA hazardous substance designations for additional PFAS chemicals and groups or subgroups of PFAS. There are more than 4,700 PFAS substances, and environmental persistence and toxicity vary drastically across groups and subgroups of the PFAS chemicals.

We have previously advised clients that the designation of PFOA and PFOS as hazardous substances was likely, and that businesses should take steps to ensure they are protected. Specifically, potentially impacted parties should assess if the states in which they operate have established state PFAS standards, as that state standard could be an ARAR. Second, it is time to inventory where products potentially containing any PFAS are located to ensure safe storage. As discussed in previous client alerts, a significant source of liability will be poorly stored products potentially containing PFAS that result in groundwater or soil contamination.

Regulatory action is here and we’re ready to help. From auditing supply chains and managing current inventory to submitting comments, businesses have an opportunity to get ahead of this issue and manage risk. But the train is leaving the station. Don’t miss it.

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