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On August 26, 2022, the Environmental Protection Agency (“EPA”) announced that it is proposing to designate perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) as Hazardous Substances under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). As discussed below, this designation will affect remediation efforts, notification requirements, and due diligence activities, and will have ripple effects across many state regulations that reference CERCLA Hazardous Substances.

The rule, published in the Federal Register, and the press release provide additional information.

The designation of these two compounds as Hazardous Substances under CERCLA has been in the works for years, so the timeline is still subject to change, but the following is the current estimated timeline for rule approval and application:

A public comment period will last until November 7, 2022. If your business or industry is interested, you can submit comments at this site, and reference docket number EPA-HQ-OLEM-2019-0341.

Specifically, EPA is requesting comments regarding its approach to the consideration of costs, including the following issues:

Certain organizations are already concerned about the costs of this proposed rule, especially for businesses. For example, the U.S. Chamber of Commerce recently asserted the following: “[p]rivate sector cleanup costs at Superfund sites alone resulting from the proposed Hazardous Substance designation of PFOA and PFOS are estimated to cost between $700 million and $800 million in annualized costs …”

III. What Businesses Are Affected?

According to EPA, there are five categories of businesses that are potentially affected by this action:

EPA also lists the following industries that may be affected by this rule:

IV. How Does This Impact My Business?

If the rule is accepted as it is proposed, there are many ways this designation may affect your business, including:

While this proposed designation comes as no surprise, it is quite impactful to businesses in many different ways. As a result, you may choose to submit a public comment to EPA by November 7, 2022.

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