Per- and polyfluoroalkyl substances (PFAS) are at the top of every environmental regulator’s list in 2024 and already this year the United States Environmental Protection Agency (EPA) has taken key steps toward regulating PFAS as hazardous substances. On April 19, 2024, EPA announced that it finalized its rulemaking designating perfluorooctanoic acid (PFOA) and per-fluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (also known as the Superfund law).

EPA notes some of the rule’s direct effects, but the most significant impact is that the listing would enable the government and private parties to sue potentially responsible parties under CERCLA. A variety of agencies and companies involved in the water industry may be exposed to substantial liability. EPA published guidance entitled “PFAS Enforcement Discretion and Settlement Policy Under CERCLA” to limit some of that liability, but it is yet to be seen whether EPA’s policy will be enough. Please see additional analysis on this rule in Part 1 and Part 2 of Nossaman’s analysis.

EPA also recently published a proposed rule to list nine PFAS as hazardous substances under the Resource Conservation and Recovery Act (RCRA). The listing of nine PFAS is notable as well as it is the largest group of PFAS included in any PFAS regulation. The listing primarily impacts hazardous waste treatment, storage and disposal facilities (TSDFs). The long-term impacts of the regulation are much broader though, as this listing is the first step for EPA to list PFAS as hazardous wastes, which would then trigger broad liability and the ability for private parties to sue under RCRA.

These and other regulatory developments for PFAS are discussed in Nossaman’s California Water View – 2024 Outlook.