Skip to content

U.S. EPA Designates PFAS Chemicals as CERCLA Hazardous Substances

April 22, 2024

On April 19, the United States Environmental Protection Agency (EPA) issued final regulations designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as Hazardous Substances pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA a/k/a “Superfund”). PFOA and PFOS are part of the per- and polyfluoroalkyl substances (PFAS) family of chemicals that are often referred to as “forever chemicals” because they do not readily break down in the environment. PFOA and PFOS were present in water-proofing materials, fire-fighting foam and any number of other industrial chemicals that may have been released at industrial sites or deposited at landfill or other disposal sites.

The designation of PFOA and PFOS as CERCLA Hazardous Substances will have far-reaching impacts on environmental investigations and cleanup across the country. Most notably the new regulations will:

  • allow the U.S. EPA and other state agencies to require investigation and response activities at sites where PFOA or PFOS have been released;
  • allow environmental agencies to seek recovery of environmental response costs relating to PFOA or PFOS contamination;
  • allow property owners and other third parties to bring CERCLA cost recovery or contribution actions to recover response costs attributable to PFOA or PFOS contamination;
  • require entities that release one pound or more of PFOA or PFOS in any 24-hour period (which is a very small reportable quantity compared to most CERCLA Hazardous Substances) to provide notice of release; and
  • allow environmental agencies to reopen closed or dormant CERCLA clean-up sites (e.g., landfills) and require Potentially Responsible Parties (PRPs) to undertake additional environmental response activities.

The designation of PFOA and PFOS is only the most recent example of increased scrutiny and regulation of PFAS chemicals. Earlier this month, EPA finalized a new rule setting legally enforceable standards for PFAS present in drinking water. Last fall, EPA also promulgated regulations imposing new reporting and recordkeeping requirements for PFAS under the Toxic Substances Control Act (TSCA). We anticipate the trend of continuing and increased regulation of PFAS chemicals by EPA and state environmental agencies.

Contact Matt Eugster, Kyle Konwinski, or your Varnum environmental attorney today to learn more about the requirements of these new PFAS regulations and how they may impact your business or organization.

Sign up to be the first to access our leading legal insights.

The link you have selected will redirect you to a third-party website located on another server. We are offering the link for your convenience. Varnum has no responsibility for any external websites and makes no express or implied warranties about any external websites.

Please be aware that contacting us via e-mail does not create an attorney-client relationship between you and the firm. Do not send confidential information to the firm until you have spoken with one of our attorneys and receive authorization to send such materials.