EPA on Track to List PFAS as CERCLA, Hazardous Substances

The White House Office of Management & Budget is currently reviewing EPA’s proposal to designate two of the most common PFAS compounds (PFOA and PFOS) as “Hazardous Substances” under CERCLA.  The listing effort is on track for EPA to meet its proposed March deadline for publication of a draft rule, and a final rule is expected in the summer of 2023.  Once issued, the final rule will trigger a host of regulatory and litigation activities – such as release reporting, cost recovery and contribution claims.  The listing is expected to trigger EPA investigations and enforcement at new Superfund sites, cause EPA to reevaluate remedies at ongoing cleanups, and to potentially reopen investigations at dormant sites undergoing monitoring and maintenance.  In addition, business acquiring properties will need to expand the scope of their due diligence to include analysis of risk from PFOA and PFOS during due diligence process.  Failure to do so could waive certain protections to liability afforded under CERCLA such as the innocent land owner defense, or the bonafide prospective purchaser defense.  For more information, please contact Phillip Hoover or Steve O’Day.

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