Municipalities and Special Districts Could Face Liability As a Result

The U.S. Environmental Protection Agency (EPA) has released the pre-publication of the long-awaited Proposed Rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as “Superfund.”

The White House Office of Management and Budget found the proposed rule to be economically significant. This designation means the rule is expected to annually cost $100 million or more, and requires the EPA to conduct a Regulatory Impact Analysis.

Once the rule is finalized, EPA will be able to investigate, require cleanup of contamination, and seek cleanup costs from a potentially responsible party, or require that party to conduct the cleanup directly. As a result of this designation, municipalities and special districts could face liability as potentially responsible parties, even in situations where a municipality or district did not produce, use or profit from PFAS being placed into commerce.

EPA will be publishing the NPRM in the Federal Register in the next several weeks. Once the proposed rule is published, the public will have 60 days to submit comments.

Notably, EPA also announced that following the closure of this particular comment period, the agency will be issuing an Advanced Notice of Proposed Rulemaking to designate other PFAS chemicals as hazardous substances under CERCLA.

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