EPA is taking action against “Forever Chemicals” on multiple fronts that will impact environmental regulation, investigation, and remediation at an unimaginable number of sites around the United States. EPA has already established enforceable limits on six of these chemicals in drinking water and has in its sights the designation of certain of those chemicals as hazardous substances under Superfund law (CERCLA), with a final rule to be in place as soon as February 2024. In March 2023, EPA proposed to establish legally enforceable levels for six polyfluoroalkyl substances (collectively known as “PFAS”) known to occur in drinking water. Meanwhile, EPA is also pursuing rulemaking on certain of those chemicals to be designated as CERCLA “hazardous substances,” which could impact tens of thousands of contaminated sites around the country.

What are PFAS?

PFAS includes a group of thousands of compounds characterized by long carbon chains bonded with fluorine atoms. They have been used in many industries for a wide range of purposes from coating nonstick cookware and food packaging (the most famous use is Teflon®), to use in firefighting foams and misting for fume suppression in operations such as chrome plating. The same properties that make them so useful also make them very persistent in the environment — meaning they do not readily degrade (hence the nickname, “forever chemicals”). Because of their widespread use and persistence, many PFAS are found in the blood of people and animals all over the world and are present at low levels in a variety of food products and in the environment.

CERCLA Rulemaking by EPA

EPA’s proposed rule to designate PFOA and PFOS as “hazardous substances” under CERCLA was submitted for publication in the Federal Register on August 25, 2022. The public comment period closed on November 7, 2022. On April 13, 2023, EPA published an Advanced Notice of Proposed Rulemaking seeking public comment on a proposal to list as “hazardous substances” the following additional PFAS: PFBS, PFHxS, PFNA, HFPO-DA, PFBA, PFHxA, and PFDA.

Impacts of CERCLA Designation

Designating even just PFOA and PFOS as CERCLA hazardous substances would have enormous impacts across numerous industries. Water utilities, waste management, landowners of all types, and many more businesses would potentially face a huge burden for cleaning up pollution. New exposure to liability will arise for potentially responsible parties (including current and certain former landowners and operators). New sampling and testing requirements will be implemented at many existing and new sites, with the possibility of reopening of sites where closure was previously obtained.