Regulatory Alert: EPA Sets Deadline for Responding to Proposed Rule to Designate PFOA/PFOS as Hazardous Substances Under CERCLA

September 6, 2022

The U.S. Environmental Protection Agency (EPA) published on September 6 in the Federal Register its proposed rule that would designate two PFAS chemicals, PFOA and PFOS, as “hazardous substances“ under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known as the Superfund law. The agency has set Monday, November 7, as the date for airports, other stakeholders, and the public to respond to the proposal.

A hazardous substance designation, if finalized, could trigger potentially costly litigation and cleanup efforts for airports to address PFOA and/or PFOS related contamination because CERCLA imposes liability on parties that are responsible for releases, or threatened releases, of any substances designated as hazardous. We have provided additional details regarding the proposal and its potential impacts on airports in our August 26 Regulatory Alert.

AAAE has been engaged with lawmakers and regulators and is working to prevent airports from being financially responsible for the impacts of historical usage of aqueous film forming foam (AFFF), which contains PFAS, because the Federal Aviation Administration has required airports to use AFFF at their facilities for decades. AAAE has pushed back, and will continue to push back, on any hazardous substance designation of PFOA and PFOS without corresponding liability protection for airports.

Over the next two months, AAAE will be working closely with its PFAS Coalition and members to respond to the proposed rule before the November 7 deadline. We understand that some airports are planning to file individual responses with EPA to the proposal. We will be holding at least one virtual meeting to ensure a coordinated response within the airport community. Additional details will be provided to members in the near term.

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Additional Resources
• EPA's Proposed Rule to Designate PFOA/PFOS as Hazardous Substances&nbsp;
• EPA's Press Release on the Proposed Rule&nbsp;
• EPA's Summary of the Proposed Rule&nbsp;
• EPA's Strategic Roadmap on PFAS (Oct. 2021)&nbsp;
• AAAE's October 18 Regulatory Alert&nbsp;on EPA's Strategic Roadmap on PFAS&nbsp;
• AAAE's August 26 Regulatory Alert&nbsp;on EPA's Proposed Rule&nbsp;