Gearing up for a potential final rule in summer 2023, the U.S. Environmental Protection Agency (EPA) on January 10 submitted a proposed rule to the White House Office of Management and Budget (OMB) to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). OMB reviews are generally targeted to be completed within 90 days, but they can last much longer — or be concluded more quickly — depending on the rule being studied. The submittal is consistent with what EPA forecasted in its October 2021 PFAS Roadmap and its Unified Agenda.

EPA has never before written a rule to designate a chemical as a CERCLA hazardous substance. This novelty is compounded by years of agency delay in reaching this milestone in the per- and polyfluoroalkyl substances (PFAS) arena.

Once completed, the rule would spawn a number of consequences, including release reporting, cost recovery, and contribution claims. EPA said in its October 2021 PFAS Roadmap, “Such designations would require facilities across the country to report on PFOA and PFOS releases that meet or exceed the reportable quantity assigned to these substances.” EPA further highlighted in its Unified Agenda that release reporting “will enable Federal, State, Tribal, and local authorities to collect information regarding the location and extent of releases.” This statement can only be read to signal the potential for enforcement activity.

In this regard, it is noteworthy that at existing Superfund sites (including sites where a final remedy is underway), EPA can require that the sites be investigated for PFOA and PFOS. EPA could also require that existing remedial strategies be modified to address these contaminants in soil or groundwater. Even at sites where remedial measures have been completed, EPA could reopen the sites and require that the newly designated hazardous substances be remediated.

Although the Trump administration had prepared a draft advance notice of proposed rulemaking (ANPRM) to analyze listing the two substances, the Biden administration in January 2021 blocked the measure and eventually scrapped it, opting instead to issue a proposed rule to affirmatively accomplish the designation. Whereas the Biden draft rule would create regulatory limits, the prior ANPRM would have been limited to canvassing information about the substances and their potential regulation under CERCLA and the Resource Conservation and Recovery Act, before EPA would move forward.

Once EPA receives the OMB review and publishes the proposed rule for comment in the Federal Register, there will likely be significant comments filed both against and in favor of the designation.