Today, the U.S. Environmental Protection Agency (EPA) announced that Administrator Regan signed a proposed rule to designate two of the most widely studied per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The proposed designation for PFOA and PFOS, if and when finalized, would provide EPA with powerful new tools to clean up existing contamination in hot spots across the country, while seeking to hold those responsible for the releases financially accountable. The designation would also increase EPA’s reporting and information gathering authorities as the agency continues to build its database of PFAS contamination.

In a partial nod to concerns raised by the water and wastewater sector, particularly those passive recipients of PFAS contamination that are grappling with increasingly complex regulatory frameworks for their operations, EPA stated that it “will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination.” This may be a welcome signal to some, but entities that manage PFOA and PFOS anywhere in their operational framework will want to brush up on some basic CERCLA liability principles as you evaluate this new proposal.

The pre-publication version of the proposal is available online. Once the proposal is formally published in the Federal Register, EPA is providing 60 days for public comment. Importantly, EPA also signaled a forthcoming Advanced Notice of Proposed Rulemaking (ANPRM), seeking comment on whether other PFAS compounds warrant CERCLA designation. It is too soon to know whether EPA is anticipating a chemical-by-chemical approach to CERCLA designation, but Gen-X and PFBS are among the likely candidates for future regulatory action. It is also likely that EPA, through its anticipated ANPRM, will seek input from the public on whether and how to address PFAS as a class of chemicals, a determination that may hinge on EPA’s ongoing efforts to broaden its sampling and toxicity assessment methodologies.