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EPA Proposes Designation of First PFAS Chemicals as Hazardous Substances Under CERCLA
EPA Proposes Designation of First PFAS Chemicals as Hazardous Substances Under CERCLA

On August 26, 2022, the United States Environmental Protection Agency (EPA) proposed the treatment of two PFAS chemicals as hazardous substances under federal law, which would include the triggering of obligations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, the EPA has proposed the designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), together with their salts and structural isomers, as hazardous substances. The EPA also indicated that it would soon consider similar designations for other PFAS chemicals.

PFAS chemicals are synthetic compounds referred to as "forever chemicals" because they do not tend to break down naturally. Such chemicals are commonly found in firefighting foam and many household products, such as nonstick cookware, carpets, food packaging, stain repellents and water-resistant clothing.

If adopted, the rule would require reporting of releases of these PFAS chemicals above certain standards (default reportable quantity of one pound) and would give the EPA the authority to require cleanups or seek cleanup funds from potentially responsible parties under CERCLA. This may result in the reopening of closed sites, remediated under CERCLA, and will likely increase investigation and remediation costs at existing and future clean-up sites.

Once the proposed rule is published in the Federal Register, public comments will be accepted for 60 days following publication. Connell Foley will continue to monitor the development of this proposed rule, and any developments regarding federal regulation of other PFAS chemicals.

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