In September 2022, the US Environmental Protection Agency (EPA) proposed to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).  To say that this designation of these per- and polyfluoroalkyl substances (PFAS) under CERCLA will create a tremendous regulatory/liability challenge is an understatement.

PFOA/PFOS Designation Delayed

As announced in the Spring 2023 Unified Agenda, the EPA has pushed the timeline for the CERCLA designation from August 2023 to February 2024.

Implications of the Delay

The Brownstein law firm provided several implications of this delay.  Direct quotes from their blog are in quotation marks below:

EPA may be delaying the CERCLA designation to add other PFAS.

You may recall that in April 2023, the EPA announced the Advanced Notice of Proposed Rulemaking that it was seeking input and data to assist in its consideration of the development of potential future regulations for the designation as hazardous substances under CERCLA of seven additional PFAS compounds.

The delay also gives Congress more time to respond to the proposed designation and offer statutory protections for water and wastewater utilities and other passive receivers like solid waste disposal facilities and composting facilities.”

The delay may also indicate that EPA is taking time to further develop its CERCLA Enforcement Discretion Policy.”

Time will tell what the delay will ultimately bring.

Dragun presenting at a PFAS conference

Dragun’s senior environmental scientist, Jeffrey Bolin, responding to a question about PFAS at a American Chemistry Council meeting in Detroit.

PRP and Third-Party Lawsuits

Earlier this year, the EPA held listening sessions with respect to the designation of the two PFAS compounds as CERCLA hazardous substances.  The EPA stated there would be no enforcement at the following:

  • Water Utilities
  • Publicly-Owned Treatment Works
  • Municipal Landfills
  • Farms that applied biosolids
  • Tribal or local fire departments
  • State or tribal municipal airports

However, this does not mean any of the above could not be named as a Potentially-Responsible Party under CERCLA or from third-party lawsuits.

Property Transactions

Brownstein also wrote, “While the delay could spell relief for passive receivers, it is an unwelcome extension for some landowners and prospective purchasers of land that potentially contains PFAS.

If PFOA and PFOS are designated as CERCLA hazardous substances, they will have to (along with any other CERCLA hazardous substance) be considered during environmental due diligence (i.e., Phase I/II Environmental Site Assessments).

Purchasing property today does not require this consideration – but selling the same property after the CERCLA designation would require that any due diligence consider these compounds.  If found above threshold quantities, the property owner could be liable under CERCLA.  Evaluating PFAS during due diligence should be discussed with trusted legal and technical advisors to develop an appropriate strategy for your situation.

While there is a brief respite in designating certain PFAS as CERCLA hazardous substances, it seems to be a fait accompli and it would be wise to plan accordingly.

Also, see our PFAS Resources page.

If you need assistance on an environmental issue (permitting, planning, assessments, closures, litigation support, etc…), contact Jeffrey Bolin, M.S. at 248-932-0228, Ext. 125.

Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.

This blog was drafted by Alan Hahn.  Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management.  He has worked in environmental management for 45 years.  He has written hundreds of blogs and articles.  His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

The blog was reviewed by Jeffrey Bolin, M.S.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, frequent speaker, and expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas.  See Jeff’s Bio.  

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