EPA Designates PFAS Chemicals as CERCLA Hazardous Substances and Issues New Regulations for PFAS in Drinking Water

In April 2024, the United States Environmental Protection Agency (EPA) designated PFOA and PFOS, two types of per- and polyfluoroalkyl substances (PFAS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA identified these substances, commonly called “forever chemicals,” as posing significant risks to human health. The EPA’s new classifications will have far-reaching implications for investigating, remediating, reporting, and determining liability for these chemicals. These implications also include, notably, whether previously closed Superfund sites could be reopened and whether potentially responsible parties that resolved alleged CERCLA liability may rely on releases obtained before EPA added PFAS as a CERCLA hazardous substances.

Additionally, the EPA introduced new national regulations for PFAS in drinking water. With this new announcement, the EPA is taking proactive steps to monitor and regulate the levels of PFAS in drinking water across the country. The EPA also plans to provide nearly $1 billion in funding for implementation.

What are PFAS, and why is the EPA taking interest?

PFAS, a group of synthetic compounds, are used in various industrial and consumer products, including firefighting foams, non-stick cookware, waterproof clothing, and stain-resistant furniture. Their nickname, “forever chemicals,” is derived from their persistence in the environment for extended periods of time—they do not break down easily. They can accumulate in water, soil, and even the body. For more background on PFAS, see previous Hartman King PC articles here and here.

What is CERCLA, and what do the PFOA and PFOS CERCLA designations do?

CERCLA, also known as Superfund, is a federal law that addresses the cleanup of hazardous waste sites. CERCLA gives the EPA the authority to respond to releases or threatened releases of hazardous substances and to recover the costs of contamination response actions from potentially responsible parties (PRPs).

The EPA’s designation of PFOA and PFOS as hazardous substances triggers numerous requirements and authorities under CERCLA. The main impact of this designation is that it incorporates PFOA and PFOS into CERCLA’s framework, which imposes strict, joint, and several liability on parties responsible for releasing these chemicals. The EPA can investigate and compel parties to remediate alleged releases. PRPs also have a private right to sue each other for cost recovery and contribution. However, while the EPA now enforces PFOA and PFOS cleanup, most PFAS compounds are not yet listed as hazardous substances and thus remain unregulated under CERCLA.

What is the EPA’s new PFAS drinking water rule?

Also in April 2024, the EPA established the first national drinking water standard for six PFAS compounds in drinking water. Under the Safe Drinking Water Act, the EPA set legally enforceable limits, called Maximum Contaminant Levels (MCLs), for PFOA, PFOS, PFHxS, PFNA, HFPO-DA, and PFAS mixtures containing at least two or more of PFHxS, PFNA, HFPO-DA, and PFBS.

The new EPA regulations require public water utilities to monitor for the six PFAS compounds over the next three years and provide the public with information on the levels of these PFAS in drinking water beginning 2027. If monitoring indicates that drinking water levels exceed the MCLs, public water utilities have until 2029 to implement solutions that reduce potential exposure to PFAS in drinking water. Beginning in 2029, any public water utilities with PFAS levels that exceed the MCLs are required to take action to lower these levels and must provide notification to the public of the alleged violation.

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