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Certain PFAS now designated as hazardous substances under CERCLA

Certain PFAS now designated as hazardous substances under CERCLA The new hazardous substances designation for PFOA and PFOS will impact actions at current CERCLA sites, while closed sites may be reopened for additional investigation.

On Friday, the EPA designated two PFAS compounds—PFOA and PFOS and their salts and structural isomers—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as “Superfund.” The EPA bases this designation on finding that those substances, “when released into the environment, may present substantial danger to the public health or welfare or the environment.” This designation has broad implications for primary manufacturers of PFAS. It will also have a substantial impact on various secondary users of these compounds, including manufacturers of semiconductors, medical devices, chrome plating, and the like, as well as facilities that have used aqueous film forming foam (AFFF), including airports, oil refineries, and mines.

But haven’t these compounds been phased out?

While U.S. production of PFOA and PFOS was phased out in the early 2000s, these chemicals continue to be detected in soil, sediment, groundwater, and surface water throughout the country. And, given their persistence in the environment and their mobility, these substances present unique cleanup challenges.

What are the new reporting requirements?

The final rule states that releases of PFOA or PFOS of one pound or more in a 24-hour period must be immediately reported to the National Response Center and state, tribal, and local emergency responders.

Who pays for cleanup?

Under the new rule, the EPA intends to increase the pace of cleanups and shift cleanup costs from taxpayers to responsible parties—a shift that should be noteworthy for private industries and one that aligns with the EPA’s PFAS Strategic Roadmap, in which the EPA aims to reduce PFAS in the environment by focusing on its sources.

The EPA will focus on holding responsible those entities that significantly contributed to the release of PFAS into the environment.

Included in the announcement of the final rule, the EPA included a memorandum outlining “PFAS Enforcement Discretion and Settlement Policy Under CERCLA.” The EPA will focus on holding responsible those entities that significantly contributed to the release of PFAS into the environment, including parties that manufactured PFAS or used PFAS in their manufacturing processes, federal facilities, and other industrial parties.

The EPA does not intend to pursue, based on equitable factors, PFAS response actions or costs under CERCLA against the following parties:

  • Community water systems and publicly owned treatment works (POTWs)

  • Municipal separate storm sewer systems (MS4s)

  • Publicly owned or operated municipal solid waste (MSW) landfills

  • Publicly owned airports and local fire departments

  • Farms where biosolids are applied to the land

What are the wide-reaching impacts of this new designation?

This new rule will impact actions at current CERCLA sites, while closed sites may be reopened for additional investigation. Sites currently being investigated or remediated may now be required to work under the more rigorous federal CERCLA program rather than voluntary or state-led programs. The rule could also cause ripple effects, given that state-level regulatory programs may currently be using the federal definition of hazardous substances.

Other regulations the new rule could impact include:

By designating PFOA and PFOS as hazardous substances, the rule will also broaden the scope of Phase I environmental site assessments (ESAs) to include the potential release of these compounds in commercial property transactions.

Although this rule only applies to PFOA and PFOS, the EPA published an Advanced Notice of Proposed Rulemaking (ANPRM) in early 2023 seeking input and data regarding the potential future designation of six additional PFAS chemicals as hazardous substances under CERCLA. Earlier this month, the EPA finalized new federal maximum contaminant levels (MCLs) for several of these additional compounds in the National Primary Drinking Water Regulation (NPDWR).

Ready to assess your facility or closed site?

Barr has been assisting clients throughout the U.S. with state-based CERCLA rules that have been applied to PFAS-impacted sites. With CERCLA response decisions being made on a case-by-case basis, it is vital for potentially responsible parties to work with a consultant experienced on this complex topic. Barr’s two decades of PFAS experience, combined with our knowledge of Superfund site investigation and cleanup, can help you determine the impact of this rule through early assessments of your facility or closed site. Contact our PFAS team to learn how we can help you with your site-specific questions.


  • EPA: U.S. Environmental Protection Agency

  • PFAS: per- and polyfluoroalkyl substances

  • PFOA: perfluorooctanoic acid

  • PFOS: perfluorooctanesulfonic acid

About the authors

Sara Ramsden, PFAS market lead, vice president, and senior environmental engineer, has more than 15 years of experience with contaminated site investigation and cleanup for a variety of soil, groundwater, and vapor remediation projects. Her experience includes leading several high-profile PFAS investigations on remediation sites with multiple stakeholders. Sara also managed a large vapor-intrusion sampling and mitigation project located in a residential urban area and led the project team assisting with one of the largest and most complex brownfield redevelopments in Minnesota. Her other areas of focus include Phase I ESAs, site investigation planning, response action plan preparation, remedial design, and multi-party coordination.

Nick Palatiello, PFAS market lead, represents Barr’s comprehensive PFAS engineering and environmental services, from preliminary investigation to detailed design of treatment systems and remediation. For over seven years, Nick has worked with clients and regulators to address PFAS issues across the U.S. and around the world. He is involved in regulatory tracking and analysis, as well as developing strategies for clients to address PFAS. Nick has been part of Barr’s corporate business development group for more than 10 years and focuses on market and strategy development for energy and manufacturing.

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Sara Ramsden, PFAS Market Lead, Vice President, Senior Environmental Engineer
Sara Ramsden
PFAS Market Lead, Vice President, and Senior Environmental Engineer


Nick Palatiello, PFAS Market Lead
Nick Palatiello
PFAS Market Lead
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