PFAS: EPA Proposes Designation of PFOS and PFOA under CERCLA

August 30th 2022

Last week the EPA signaled that they will propose designating PFOS and PFOA, the two, historically, most widely used PFAS, to be considered hazardous substances under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The designation will include the two chemicals and all their salts and isomers.

So what has changed? Well, nothing yet. The EPA still needs to publish their proposed rulemaking and undergo the back and forth process of finalizing the designation. This will take time. If anything, it puts users/polluters of PFOS and PFOA on notice that some enforcement may be coming, but as to what that enforcement could be depends on what kind (i.e. water, soil, air) of final values they publish. Granted, nothing has been finalized, and the EPA’s designation could fail.

What would designation under CERCLA mean for PFOS and PFOA? Naturally, it really depends on the final outcome of the CERCLA designation. Use of the chemicals will continue, but it will be far more closely monitored. Polluters could then be made to pay for clean up by the EPA or be made to conduct clean up themselves (just to maintain my neutrality on the topic, its important to note that many state and federal entities have been large PFAS polluters). Additionally, polluters may be on the hook for future contamination (like with degradation of other PFAS into PFOA and PFOS) and may also be liable should the proposed CERCLA designation be expanded in the future to include other PFAS.

This announcement and future progress towards CERCLA designation, should it happen, will likely provide a great deal of fuel to current cleanup efforts and present/future litigation. I look forward to reading the EPA’s proposed designation and justification.