On June 30, 2020, the federal government released its Spring Unified Regulatory Agenda (SURA), which provides uniform reporting of data on regulatory and deregulatory activities under development throughout the Federal Government, covering approximately 60 departments, agencies, and commissions. The Environmental Protection Agency (EPA) included over 100 action items in this report, two of which address the agency’s efforts to regulate certain PFAS in drinking water and also to classify PFAS as “hazardous substances” under CERCLA.

The first Rule that the EPA included in the SURA addresses the EPA’s actions regarding setting drinking water standards for two type of PFAS – PFOA and PFOS.  On March 10, 2020, the EPA published a notice in which it indicated that it intended to set drinking water limits for PFOA and PFOS, which opened up the comment period for the EPA’s proposal. The comment period closed on June 10, 2020; however, the comment period is the beginning of the regulatory process for which public comment is sought and describes the EPA’s preliminary determinations concerning the three statutory criteria which must be met to proceed to the next phase: 1) the existence of adverse health effects, 2) the occurrence and frequency at levels of public health concern and 3) the existence of a meaningful opportunity for health risk reductions.

Typically, the process after the public comment period closes can take years to complete before a final rule is established, as substantial amounts of data must be collected to support the EPA’s final determination.  However, the EPA indicated in the SURA that it will issues its final determination in January of 2021. The accelerated deadline is in part due to the Safe Water Drinking Act (SDWA), which requires the EPA to make regulatory determinations on contaminants on the Contaminant Candidate List (CCL), which contains both PFOA and PFOS, every five years.  The last determination made by the EPA for PFOA and PFOS was January 2016, so the EPA is statutorily obligated to make its final determination in January 2021.

A second Rule that the EPA included in the SURA related to the EPA’s determination as to whether or not PFAS should be considered “hazardous substances” under CERCLA. While in the early stages of the regulatory process, the EPA’s inclusion of this Rule in the SURA signals its intent to focus on this determination sooner rather than later. In fact, the SURA indicates that an initial proposed determination will be released in August 2020, which will trigger the public comment period.  A determination by the EPA that PFAS constitute “hazardous substances” under CERCLA will have far-reaching implications well beyond manufacturers of PFAS. Land owners (whether the actual site testing for elevated PFAS or abutting properties), developers, and any company utilizing PFAS in their manufacturing processes will be potentially liable and responsible for clean up costs if such a designation is made for PFAS and if land testing reveals the presence of PFAS. In addition, the designation under CERCLA will reopen numerous previously closed Superfund sites for further testing and remediation.  A designation as a “hazardous substance” will also enable federal, state, tribal and local authorities to collect information regarding the location and extent of releases.

CMBG3 Law is following judicial, legislative, and administrative developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.

Authored By:

John Gardella, Esq.