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PFAS CERCLA Designation Hits a Snag

UPDATE: Since posting, USEPA released a prepublication version of the proposed listing rule. You can learn more about the proposed ruling in our recent client alert - EPA Advances Rule to Designate PFOA, PFOS as CERCLA “Hazardous Substances” - Michael Best & Friedrich LLP 

Recent intel in DC was that White House Office of Management and Budget (OMB) approval of EPA's rule designating PFOA and PFOS as CERCLA "hazardous substances" was imminent.  However, news broke earlier this week that following input from numerous affected industries and states, OMB changed its designation of the proposed rule to “economically significant” which triggers the requirement for the agency to perform a Regulatory Impact Analysis (RIA) prior to issuing a proposed PFAS CERCLA designation.  EPA will have to provide justification for its approach via the RIA, no doubt delaying publication of the proposed listing. 

"While the RIA requirement will certainly put in jeopardy EPA’s self-set goal of having a final PFAS CERCLA designation published in 2023, our prediction remains that during the Biden Administration, we will see the EPA issue a proposed rule designating PFOA and PFOS as “hazardous substances” under CERCLA."


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