The Environmental Protection Agency (EPA) issued a proposed rule to designate two per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers — as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 102. The 60-day public comment period for the proposed rule ends on Nov. 7, 2022, and can be submitted at docket EPA-HQ-OLEM-2019-0341 on www.regulations.gov.

PFOA and PFOS were historically used in many consumer products including carpets, clothing, fabrics, food packaging, and nonstick cookware. PFOA and PFAS are also prevalent in manufacturing processes including wetting agents/fume suppressants, plating processes, processing aids in textile coating applications, insecticides, certain types of adhesives, cleaning products, and coating products. Environmental sources include direct and indirect industrial, municipal, and agricultural discharges of PFOA and PFOS. They are also used for firefighting at airfields and in industrial operations.

EPA has identified PFOA and PFOS as persistent and mobile in the environment and concluded that exposure causes adverse human health effects including high cholesterol, changes in liver enzymes, decreased immune response to vaccination, thyroid disorders, pregnancy-induced hypertension and preeclampsia, and cancer.

Citing PFOS and PFOAs’ adverse human health effects and their mobility, persistence, and prevalence in the environment, EPA has proposed that PFOA and PFOS, when released into the environment, may present a substantial danger to the public health or welfare of the environment and, therefore, warrant designation as CERCLA hazardous substances.

If adopted, the designation of PFOA and PFOS will have three direct effects: (1) it will trigger reporting obligations when there is a release of PFOA or PFOS above the reportable quantity, (2) it will create obligations for the U.S. government when it transfers certain properties under CERCLA section 120(h), and (3) it will require that the Department of Transportation list and regulate CERCLA designated hazardous substances as hazardous materials when being transported.

The consequences of this rulemaking are very real and could impact a large portion of the American economy and local governments. Even prior to this proposed rule, states and EPA have already undertaken enforcement actions to mitigate risks from PFOA and PFOS, using a variety of enforcement tools under the Safe Drinking Water Act, Toxic Substances Control Act, Resource Conservation and Recovery Act, and CERCLA. With the listing of PFOS and PFOA as CERCLA hazardous substances, all businesses that utilize, handle, or dispose of PFOS and PFOA-containing materials, and municipalities that operate publicly owned treatment works and landfills need to be cognizant of the very real possibility of enforcement actions by EPA and state regulators, in addition to claims by third parties.

For any questions about the proposed rule to designate these PFAS substances as hazardous under CERCLA, please contact Taft’s team of environmental attorneys, including Robert Bilott, John Huldin, and William Sweet.