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Regulatory Updates

PFOA & PFOS As CERCLA Hazardous Substances: What Does This Mean and How Can You Be Prepared?

Catriona Smith | February 17, 2022

A plan to designate two per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund was submitted as a formal plan to the White House Office of Management and Budget (OMB) by the U.S. Environmental Protection Agency (EPA) on January 10, 2022. The two PFAS that may potentially be designated as hazardous substances are perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).

This is particularly significant because the EPA has never designated a chemical as a CERCLA hazardous substance by rule.

This submittal kicks off the process for rulemaking and aligns with the actions outlined in October 2021 in the EPA’s Strategic PFAS Roadmap timeline. The OMB has 90 days to review the proposed plan, however these can often take much longer. The EPA has indicated that they are working towards a final rule by 2023.


  • Will require investigation and remediation of sites with impacts from the two designated PFAS
  • CERCLA hazardous substances reportable quantities and release reporting will apply
  • Associated CERCLA liability (also impacts environmental reserves) and cost recovery
  • Wastewater treatment plants and landfills may become CERCLA sites
  • Disposal/treatment of PFAS residues will become more difficult and expensive
  • Retroactive liability – Will allow “re-openers” of “closed” or “no further action” sites, including (former) brownfields redevelopment sites
  • States may have to transfer oversight of PFAS cleanups to EPA
  • Expands pre-purchase due diligence on transactions
  • Litigation claims are also likely to be expanded

What Happens Next:

  • OMB response – No Later Than 04/2022
  • Notice of Proposed Rulemaking (NPRM) – 03/2022 (EPA proposed date) – will trigger a public comment period
  • Final Rule – TBD – 2023

Other Key Items:

  • This action does not automatically make these PFAS hazardous wastes
  • This action does not automatically make these PFAS Clean Water Act hazardous substances
  • This action does not automatically make these PFAS Clean Air Act hazardous air pollutants
  • It is, however, a slippery slope in all cases!


For more information please contact Cat Smith, REM at 512.230.7597 or

Catriona Smith

Catriona (Cat) Smith has over 30 years of professional experience in the interpretation and application of regulations for industrial facilities relating to compliance, remediation and negotiations with regulatory agencies. Her clients include upstream and downstream oil and gas, chem-pharma, petrochem, manufacturing and federal, state, and local governments. Ms. Smith is a Vice President and Environmental Sector Market Director for TRC, with nationwide responsibilities to manage our clients’ PFAS challenges, support and grow our Oil and Gas clients and bring multi-disciplinary solutions to their complex projects. Contact Cat at

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