On April 19, 2024, the U.S. Environmental Protection Agency (EPA) announced the pending publication of a final rule designating two widely used per-and polyfluoroalkyl substances (PFAS) chemicals—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

This announcement comes approximately a year and a half after EPA initially proposed the designation of PFOA and PFOS as CERCLA hazardous substances via EPA’s publication of its proposed rule in late 2022.

CERCLA, informally known as Superfund, imposes joint and several liability on certain classes of individuals and entities and requires those entities to pay for or conduct investigations and cleanup of hazardous substances. Once designated as a hazardous substance, individuals and entities that currently own or operate at properties that are contaminated with PFOA and/or PFOS, individuals and entities that owned or operated properties when PFOA and/or PFOS were disposed of at the property, and individuals and entities that transported or arranged for the transport of PFOA and/or PFOS to a property could face significant liabilities from EPA and third parties unless they are eligible for certain state or federal exemptions and defenses.

In addition to the announcement of the pending final rule, EPA also announced its CERCLA enforcement discretion policy. That policy states that EPA will—for now—focus enforcement on individuals and entities who significantly contributed to the release of PFAS chemicals into the environment, including individuals and entities that manufactured PFAS or used PFAS in manufacturing processes, federal facilities, and other industrial entities.

EPA has issued its pre-publication version of the final rule. According to EPA’s announcement, it will publish its final rule in the Federal Register shortly. The rule will then be effective 60 days after it is published in the Federal Register. While the publication date is uncertain, EPA has taken the next step toward listing PFOS and PFOA as hazardous substances under CERCLA.