On April 19, 2024, EPA announced its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under CERCLA. This designation allows federal, state, and local public agencies, as well as private parties, to take cleanup actions and then seek to recover related costs using CERCLA’s strict liability standard at any site where these two PFAS chemicals are present and need to be remediated, particularly where drinking water supplies are at risk. 

Although EPA has simultaneously announced an enforcement policy indicating that it will not generally pursue cleanups by certain entities – such as publicly owned water systems, municipal solid waste landfills, airports, and local fire departments, as well as farms where biosolids are applied—we are likely at the brink of a wave of CERCLA litigation filed by EPA, other agencies, and private parties. Businesses that own or operate industrial properties, as well as anyone acquiring such properties, will now need to take this serious litigation risk into account. 

EPA’s pre-publication notice of the final rule designating PFOA and PFOS as hazardous substances under CERCLA can be found here, and the final rule will be effective 60 days after being published in the Federal Register. EPA’s enforcement policy related to the designation can be found here.