EPA proposes rule designating PFOA, PFOS as hazardous substances under CERCLA

The U.S Environmental Protection Agency (EPA) on Aug. 26 released a pre-publication version of a rule that would designate the two most common per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) — as hazardous substances under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). 

The proposal, if finalized, could present significant challenges and potential legal liabilities for public water agencies. 

While this action was widely anticipated by EPA, water sector groups representing public utilities such as the National Association of Clean Water Agencies (NACWA), said it is disappointed that EPA did not clarify that the normal operations of clean water utilities – including the discharge of wastewater effluent and municipal stormwater containing PFAS and the management of biosolids with PFAS – are exempt from CERCLA requirements. NACWA has argued strongly that clean water utilities should be exempt from a PFAS CERCLA designation – both with EPA and with Congress – and will continue these efforts moving forward.

The proposal will be published in the Federal Register within the next few weeks, which will trigger a 60-day public comment period. NACWA said will file comments and encourages members to do so, as well. EPA has a goal of finalizing the proposed rule by August 2023.

EPA is also expected to issue a separate Advanced Notice of Proposed Rulemaking (ANPR) sometime during the winter months to seek public comment on designating other PFAS chemicals as hazardous substances under CERCLA.

Sources: NACWA, EPA

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