PFAS CERCLA Designation -- What's Next

Last week, USEPA Administrator Regan signed the final rule designating PFOA, PFOS and their salts and structural isomers as hazardous substances pursuant to Sec. 102(a) of CERCLA, the federal Superfund Law. The designation will be effective 60 days after final publication in the Federal Register. The designation does primarily two things: (i) it adds these compounds to the list of hazardous substances (the "list of lists") concerning which EPA can utilize CERCLA's enforcement authorities to take or compel a response action and (ii) it requires reporting of releases (individually) of more than one pound of these substances in any 24-hour period to the National Response Center (under CERCLA) and to state and local authorities under EPCRA. The designation will undoubtedly be challenged in court given the controversy over the underlying rulemaking record.