EPA Poised To Propose Major Rules On PFAS CERCLA Designation, RMP

August 2, 2022

EPA is poised to propose its long-awaited rule to designate two per- and polyfluoroalkyl substances (PFAS) as Superfund “hazardous substances” as well as revisions to the Trump-era Risk Management Program (RMP) rule governing chemical facility safety after they cleared review by the White House Office of Management and Budget (OMB).

OMB Aug. 12 cleared both rules, “consistent with change,” the office’s website says. The clearance comes after months of lobbying by industry and environmental groups pushing their positions on the measures.

EPA sent the proposed rule to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to OMB in January.

The proposal has been in the works for years, delayed several times, with EPA then pledging this spring to issue the rule by June 2022.

The agency has never before sought to issue a rule to list a chemical as a CERCLA hazardous substance. Such a designation would require parties to report releases of the chemicals. As such, it is also expected to open the door for EPA to recover cleanup costs and encourage parties to settle cleanup disputes.

But EPA has faced multiple legal and procedural hurdles in its effort to propose the landmark rule, with industry and water utilities pressuring the White House to step up regulatory review of the listing and undertake a “robust economic analysis.” Meanwhile, dozens of House lawmakers and environmentalists have been urging EPA to quickly propose the CERCLA rule, arguing the move alone would not ban the use of the toxic chemicals but would be a “first step” to holding polluters accountable.