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U.S. EPA Proposed Listing Of PFOA And PFOS: The Effects And Costs Of Forever Chemicals – Environmental Law

On September 6, 2022, the U.S EPA’s long-awaited proposed
rule to list perfluorooctanoic acid (PFOA) and
perluoroocanesulfonic acid (PFOS) as CERCLA hazardous substances
was published in the Federal Register (Proposed Rule).1
This triggers a 60-day public notice and comment period. As the
first compounds ever proposed for hazardous substance listing under
Section 102(a) of CERCLA, and as the first two of potentially
thousands of related “forever chemicals” to be considered
by U.S. EPA, it is appropriate to evaluate the roads this element
of U.S. EPA’s PFAS Strategic Roadmap may be leading us down.
Whether due to the increase in social media or the ubiquity of PFAS
in household products, PFAS has captured the general public’s
attention in a manner rarely seen for CERCLA substances.

Historic Listing

While Section 102(a) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA)
authorizes the U.S. Environmental Protection Agency (U.S. EPA) to
promulgate regulations designating compounds as “hazardous
substances,” U.S. EPA has never done so until now. However,
PFOA and PFOS exposure has been linked to alleged effects on the
immune system, cardiovascular system, human development, and cancer
at extremely low levels. Human epidemiology studies resulted in
U.S. EPA’s release of interim updated drinking water health
advisories in June 2022 of 0.004 parts per trillion (ppt)
for PFOA and 0.02 ppt for PFOS, replacing the prior 70 ppt levels
established in 2016 with levels below current detection limits.
PFOA and PFOS are ubiquitous compounds, historically used not only
in firefighting foams and industrial applications, but also in a
wide variety of consumer products to inhibit the effects of water,
grease, and stains. These compounds were useful, in part, because
they are resistant to breaking down. They have been found in air,
water, soils, domestic and wild animals, and in a high percentage
of the U.S. population.2 Therefore, U.S. EPA has
determined that their release into the environment “may
present substantial danger to the public health or welfare or the
environment.” CERCLA Section 102(a).

What Would the Listing Trigger?

The default reportable quantity for release reporting under
Section 102(b) of CERCLA is one pound within a 24-hour reporting
period, and the proposed rule confirms that a one-pound reportable
quantity will apply to releases of PFOA and PFOS absent a new
rulemaking. Though the principal manufacturers of PFOA and PFOS
phased out their production in the early 2000s, the rule may
trigger reporting obligations for industries where PFOA and PFOS
remain present in materials previously manufactured. The proposed
rule includes a non-exhaustive list of 21 industries which it
anticipates will be potentially affected by this listing, including
textile mills, paper mills, landfills, and wastewater treatment

Perhaps more important than tracking new releases, the listing
is anticipated to substantially increase U.S. EPA’s ability to
respond to historical releases of PFOA and PFOS. U.S. EPA will be
able to require potentially responsible parties to address PFOA or
PFOS that poses an imminent and substantial endangerment. U.S EPA
and private parties will be able to seek cost recovery for
addressing PFOA and PFOS impacts. Additionally, the listing will
trigger notifications and assurances of the completion of all
necessary remedial action in conjunction with the transfer of
federally-owned property if PFOA or PFOS was stored, released, or
disposed of at the property.4 CERCLA Section 120(h). DOT
will also be required to list these substances as DOT hazardous

U.S. EPA will likely include PFAS in its five-year reviews of
historical CERCLA sites in addition to newer sites, and the listing
of PFOA and PFOS may provide U.S. EPA with the ability to reopen
existing CERCLA settlements. It is not yet clear what impact the
listings may have on statutes of limitations periods triggered by
past settlements with U.S. EPA. Still, if U.S. EPA identifies PFOA
or PFOS as a basis for reopener, that should allow participating
parties to argue that the settlements did not resolve their CERCLA
liabilities, such that they may pursue contribution and cost
recovery claims. Certainly, the regulated community can expect that
these listings will lead to an increase in CERCLA administrative
and civil actions, potentially to rival the late 1980’s and
early 1990’s.

Does Cost Matter?

On August 12, 2022, the Office of Management and Budget’s
(OMB’s) approval of the Proposed Rule’s included a
determination that this proposed rulemaking is an economically
significant action, requiring U.S. EPA to conduct a regulatory
impact analysis and to include consideration of the Proposed
Rule’s potential direct and indirect costs and benefits before
it can take effect. In the Proposed Rule, U.S. EPA takes the
position that because cost was not designated as a part of the
standard for determining whether to list a hazardous substance
pursuant to Section 102(a), it is neither a required nor
permissible factor in determining whether PFOA and PFOS should be
listed. Instead, the Proposed Rule suggests that cost
considerations can be determined in evaluating appropriate response
actions.5 Moreover, U.S. EPA noted that the only
automatic private party obligation flowing from the listing was the
obligation to report releases, estimated at an annual cost of
$370,000.6 The OMB’s determination indicates that
the Proposed Rule is anticipated to impose costs of $100 million or
more annually. U.S. EPA has prepared an economic analysis of the
potential costs and benefits, which will be posted in the docket
for this action, and U.S. EPA is seeking comments on its
interpretation of the need for and manner of considering such

Any Exit Ramps?

CERCLA offers few exemptions from liability for the release of
hazardous substances, but some existing exemptions may be
particularly interesting in the context of the PFAS listings and
their impact on historical discharges. These include exemptions for
federally permitted releases, such as discharges pursuant to water
and air permits,8 and the exemption for normal
fertilizer application.9 Owners and operators of
landfills and wastewater treatment works are lobbying for further
exemptions from CERCLA liability for PFAS on the basis that they
merely receive PFAS in wastes from others, and controls are best
placed on those generating PFAS-containing waste and wastewater.
Otherwise the costs of cleanup will be placed on the public, in
opposition to the “polluter pays” philosophy of CERCLA.
When passed by the House in July 2021, H.R. 2467, which would
require the U.S. EPA Administrator to list PFOA and PFOS as
hazardous substances and evaluate all other PFAS for listing, did
not include such exemptions. However, the bill has yet to be taken
up by the Senate, so these industries remain hopeful. Whether its
interest in PFAS may enhance or soften the general public’s
reaction to the anticipated costs of addressing it has yet to be

In the meantime, the PFAS Strategic Roadmap continues to drive
on, expanding the regulation of PFAS across all environmental
programs. U.S. EPA is:

  • Pursuing national primary drinking water standards for PFOA and

  • Finalizing a risk assessment for PFOA and PFOS in

  • Regulating a broad range of PFAS under other agency

  • Considering further CERCLA listings; and

  • Determining how PFAS should be incorporated into environmental
    justice efforts.

Clearly, the regulation of these “forever chemicals”
is here to stay.


1. 87 FR 54415, September 6, 2022.

2. Proposed Rule, Id. at 54417, citing CDC
(2021) National Health and Nutrition Examination Survey; NHANES
questionnaires, datasets, and related documentation. Centers for
Disease Control and Prevention.

3. Unlike the initial list of CERCLA hazardous
substances, the new listings will not trigger an obligation to
report facilities at which PFOA and PFOS have been stored, treated
or disposed in the past. See CERCLA Section 103(c).

4. From 1990 to 2018, federal land ownership declined by
31.5 million acres. CRS (2020) Federal Land Ownership: Overview and
Data. Congressional Research Service.

5. Proposed Rule, 87 FR 54422, p. 28.

6. Proposed Rule, Id. at 54422, 39.

7. Proposed Rule, Id. at 54423.

8. CERCLA Section 101(10). PFAS have been found in
fertilizers, including those made from wastewater plant biosolids.
See, e.g., Sludge in the Garden: Toxic PFAS in Home Fertilizers
Made from Sewage Sludge, Ecology Center and Sierra Club, May 25,

9. CERCLA Section 101(22)(D).

10. U.S. EPA added 172 PFAS compounds to the Toxic
Release Inventory list in 2020, adding 3 more in 2021. Proposed
Rule, 87 FR 54430. U.S. EPA is also requiring public water systems
to sample for 29 PFAS (and lithium) under its fifth Unregulated
Contaminant Monitoring Rule.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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