EPA Announces Policy of Enforcement Discretion in PFAS Regulation

May 4, 2023

Read the full article by Uri S. Carni and Brian Gross (JDSurpa)

"In October 2021, the US Environmental Protection Agency (EPA) released its Per- and Polyfluroalkyl Substances (PFAS) Strategic Roadmap, the stated goal of which was to, “hold polluters accountable.” Pursuant to the roadmap, EPA has proposed nearly two dozen regulatory actions over the past two years, ranging from tighter drinking water monitoring requirements to increased reporting and new restrictions on manufacturing. The agency expects to propose or finalize at least six rulemakings dealing with PFAS this calendar year. One of those proposed rulemakings that it expects to finalize is its proposal to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Just recently, EPA released an Advanced Notice of Proposed Rulemaking (ANPRM) in which EPA seeks public input concerning whether it should also designate perfluorobutane sulfonic acid (PFBS), perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA), (sometimes referred to as GenX), perfluorobutanoic acid (PFBA), perfluorohexanoic acid (PFHxA) and perfluorodecanoic acid (PFDA) as “hazardous substances” pursuant to CERCLA. Such a designation would allow EPA to designate any site with an actual or potential release of these PFAS as a Superfund site, thus leaving “Potentially Responsible Parties” strictly liable for cleanup costs, damage to natural resources and health assessment costs."