Proposed Rule to Designate Two PFAS Chemicals as Hazardous Substances Stands to Up the Ante for Site Remediation

On Friday, August 26, 2022, the U.S. Environmental Protection Agency (EPA) released a pre-publication notice of a long-awaited proposed rule to designate two of the most-studied 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). In an accompanying statement, EPA indicated that the proposed rule will be published in the Federal Register within the next few weeks. That publication will commence a 60-day public comment period, and EPA appears to be targeting final rule promulgation by Summer 2023. The addition of PFOA and PFOS to the hazardous substances list may significantly expand CERCLA liability, thus increasing the number of responsible parties, expanding investigatory costs and duration, remediation, and where applicable, natural resource damages liability.