Advocacy

EPA Proposes PFOA/PFOS CERCLA Designation Rule

The Environmental Protection Agency (EPA) has issued a pre-publication version of a proposed rule to designate two PFAS compounds as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

The proposed rule lists perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), the two most-studied per- and polyfluoroalkyl substances (PFAS), as hazardous substances under CERCLA. The rule would require parties to report releases of PFOA and PFOS, with the agency using a one-pound default value as the reporting threshold. But the rule will also allow EPA to more easily order cleanups and recover cost, among other actions.

The official version of the rule will be published in the Federal Register by the second week of September 2022. This will then launch the 60-day comment period. The rule is expected to be finalized by August 2023. During review of the proposed rule, the Office of Management & Budget (OMB) determined the rule was “economically significant.” This means that EPA must also conduct a cost-benefit analysis of indirect and direct costs and benefits in a regulatory impact analysis (RIA). That document has not yet been released.

SWANA, in consultation with the Core Advocacy Group, Technical Divisions, and other industry stakeholders, will submit comments addressing concerns that PFAS regulation under CERCLA would assign environmental cleanup liability to essential public services and their customers. While EPA has indicated it has discretion over enforcement to avoid going after passive receivers, that would not prevent manufacturers and heavy users of PFAS from bringing claims for contribution against landfills and others.

EPA has announced plans to issue an Advance Notice of Proposed Rulemaking after the close of the comment period on the current proposal to seek public comment on designating other PFAS chemicals as CERCLA hazardous substances as well.

In addition to working with EPA on this issue, SWANA continues to engage with Congress on potential legislative actions that could ensure that passive receivers of PFAS, like landfills and wastewater treatment facilities, can continue to do so safely and economically.