EPA proposes designating PFOA, PFOS as hazardous substances

Aug. 26, 2022
The rulemaking would recognize the dangers of two of the most widely used PFAS and would require facilities to report any releases of the substances that exceed a certain quantity.

The U.S. Environmental Protection Agency (EPA) is proposing to designate two of the most widely used per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as “Superfund.”

The rulemaking would increase transparency around releases of these harmful chemicals and help to hold polluters accountable for cleaning up their contamination. It is a significant action under EPA’s PFAS Strategic Roadmap.

The proposal applies to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, and is based on significant evidence that PFOA and PFOS may present a substantial danger to human health or welfare or the environment. PFOA and PFOS can accumulate and persist in the human body for long periods of time and evidence from laboratory animal and human epidemiology studies indicates that exposure to PFOA and/or PFOS may lead to cancer, reproductive, developmental, cardiovascular, liver, and immunological effects.

“Communities have suffered far too long from exposure to these forever chemicals. The action announced today will improve transparency and advance EPA’s aggressive efforts to confront this pollution, as outlined in the Agency’s PFAS Strategic Roadmap,” said EPA Administrator Michael S. Regan. “Under this proposed rule, EPA will both help protect communities from PFAS pollution and seek to hold polluters accountable for their actions.”

If this designation is 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. A release of these or any other hazardous substance will not always lead to the need to clean up or add a site to the National Priorities List (NPL), liability, or an enforcement action.

“For decades, polluters dumped toxic PFOA and PFOS into scores of communities across the country with impunity,” says Ken Cook, President of the Environmental Working Group. “Today’s proposal will give the EPA and those communities critical new tools to finally hold those polluters accountable and force them to clean up their mess.”

EPA anticipates that a final rule would encourage better waste management and treatment practices by facilities handling PFOA or PFOS. The reporting of a release could potentially accelerate privately financed cleanups and mitigate potential adverse impacts to human health and the environment.

Additionally, the proposed rule would, in certain circumstances, facilitate making the polluter pay by allowing EPA to seek to recover cleanup costs from a potentially responsible party or to require such a party to conduct the cleanup. In addition, federal entities that transfer or sell their property will be required to provide a notice about the storage, release, or disposal of PFOA or PFOS on the property and a covenant (commitment in the deed) warranting that it has cleaned up any resulting contamination or will do so in the future, if necessary, as required under CERCLA 120(h).

EPA will be publishing the Notice of Proposed Rulemaking in the Federal Register in the next several weeks. Upon publication, EPA welcomes comment for a 60-day comment period.

As a subsequent step, EPA anticipates issuing an Advance Notice of Proposed Rulemaking after the close of the comment period on the proposal to seek public comment on designating other PFAS chemicals as CERCLA hazardous substances.

The actions represent a significant milestone within EPA’s PFAS Strategic Roadmap. Under the Roadmap, EPA is working across the agency to protect the public from the health impacts of PFAS. EPA has taken a number of actions to deliver progress on PFAS including:

  • Releasing drinking water health advisories for four PFAS – using the best available science to tackle PFAS pollution, protect public health, and provide critical information quickly and transparently;
  • Making available $1 billion in grant funding through the Infrastructure Investment and Jobs Act (IIJA);
  • Issuing the first Toxic Substances Control Act PFAS test order under the National PFAS Testing Strategy;
  • Adding five PFAS Regional Screening and Removal Management Levels that EPA uses to help determine if cleanup is needed;
  • Publishing draft aquatic life water quality criteria for PFOA and PFOS;
  • Issuing a memo to proactively address PFAS in Clean Water Act permitting;
  • Publishing a new draft total adsorbable fluorine wastewater method; and
  • Issuing the fifth Unregulated Contaminant Monitoring Rule to improve EPA’s understanding of the frequency that 29 PFAS are found in the nation’s drinking water systems and at what levels and preparing to propose a PFAS National Drinking Water Regulation by the end of 2022.