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EPA Publishes Proposed Rule to Designate PFOA and PFOS as Hazardous Under CERCLA

On September 6, 2022, the U.S. Environmental Protection Agency published its proposed rule designating two of the most widely used per- and polyfluoroalkyl substances (PFAS), perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as “Superfund.”  PFOA and PFOS had been widely used in many products, including fire-fighting foam, non-stick cookware and food packaging.

 

If finalized, releases of PFOA and PFOS that meet or exceed the reportable quantity would have to be reported to the National Response Center, state or Tribal emergency response commissions, and the local or Tribal emergency planning committees. If adopted, the proposed rule could allow the EPA to seek costs or clean-up of PFOS or PFOA contamination from potentially responsible parties under CERCLA.

 

Certain exceptions to CERCLA liability are available to local governments.  However, in circumstances when an exception does not apply, local public agencies may face liability as potentially responsible parties under CERCLA as a result of the new anticipated rule. For example, an agency may be exposed to liability if the agency now or in the past owned or operated a facility at which PFOS or PFOA was disposed of, or the agency arranged for the transport or disposal, or selected a site for such disposal. 

 

Water sector organizations asked Congress to statutorily exempt from the new rule water systems that have played no role in producing, using, or profiting from PFAS.  They state that without a water sector exemption, cleanup liability could be imposed upon utilities protecting public health and safety.  For example, water, wastewater, stormwater, and water reuse systems passively receive PFAS from various sources.  Absent an exemption for water, wastewater and water reuse sectors, agencies would incur increased financial risks and costs for byproducts created during normal water and wastewater treatment processes.

 

The comment period for the proposed rule closes on November 7, 2022.

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