The EPA released a prepublication for two PFAS chemicals PFOA and PFOS

On Friday, August 26, 2022, the EPA released a pre-publication version of a proposed rule designating two PFAS chemicals, PFOA and PFOS, as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). The 60-day public comment period on the proposed rule begins upon the EPA’s publication of this rule in the Federal Register, which the EPA says will occur in the coming weeks.

From the 1950s to the early 2000s, PFOA and PFOS were the most widely used PFAS chemicals. However, beginning in the early 2000s, PFOA and PFOS were phased out in the United States and replaced with shorter chain PFAS chemicals. Nevertheless, due to the widespread use of PFOA and PFOS for decades and the persistence of PFAS chemicals, PFOA and PFOS are still commonly found in the United States.

Studies have linked PFOA and PFOS to adverse health effects, including certain cancers (kidneys and testes), immune effects (decreased antibody production and immunity), changes cholesterol, preeclampsia, thyroid disease and ulcerative colitis.

Under the proposed rule, EPA can seek to recover cleanup costs from a potentially responsible party or require a potentially responsible party to clean up a site contaminated with PFOA or PFOS. Of particular concern is that sites that are or were previously designated as Superfund sites could be subject to additional review by the EPA and reopened by the EPA for investigation and remediation of PFOA or PFOS contamination.

The proposed rule also includes reporting requirements. Releases of PFOA and PFOS to the environment that exceed the reportable quantity (RQ is ≥ 1 lb) must be reported to the National Response Center, State or Tribal Emergency Response Commission and local emergency responders within 24 hours of the release.

In anticipation of the EPA’s designation of PFOA and PFOS as hazardous under CERCLA, Maine last year passed PL 2021, c. 117, which provides that any substance defined as hazardous under CERCLA is a Maine hazardous substance regulated under the Maine Uncontrolled Hazardous Substances Sites Act. 38 MRS § 1362(1)(H) (Superfund Act).

So once the EPA issues a final rule designating PFOA and PFOS as hazardous under CERCLA, PFOS and PFOA will also be hazardous substances under Maine’s Superfund law and subject to enforcement. by the state under this law.

©2022 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XII, Number 244

Jacob L. Thornton