US EPA to Designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) CERCLA Hazardous Substances

On April 19th, 2024, the US Environmental Protection Agency (EPA) announced in a press release that it will designate PFOS and PFOA, two per- and polyfluoroalkyl substances (PFAS), including their salts and isomers, hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA a.k.a. Superfund). These compounds, first used in the 1940s, were largely phased out in the United States by 2015. Under the new CERCLA designation, the environmental persistence and potential adverse health effects of PFOA and PFOS will drive investigations and remedial actions.

The rule will take effect 60 days from the date published in the Federal Register which is pending at this time. The EPA has also issued the memorandum “PFAS Enforcement Discretion and Settlement Policy Under CERCLA" which will focus “Enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties." At the same time the EPA will be providing additional clarity of the enforcement policy on the agency’s “Intent not to pursue certain parties such as farmers, municipal landfills, water utilities, municipal airports, and local fire departments, where equitable factors do not support seeking CERCLA cleanup or costs.”

This designation is consistent with ”EPA’s Strategic Roadmap on PFAS: EPA's Commitments to Action 2021-2024" which is to provide additional research on PFAS exposure routes, restrict PFAS from entering the environment, and remediate PFAS contaminated sites. The final rule will require reporting PFOS or PFOA releases which exceed one pound in a 24-hour period to the National Response Center, State, Tribal, and local emergency responders.