As we await final agency action on U.S. EPA's pending
rulemaking to designate perfluorooctanoic acid (PFOA) and
perfluorooctanesulfonic acid (PFOS) as CERCLA
hazardous substances, U.S. EPA has just published an advanced
notice of proposed rulemaking (ANPR) soliciting public input on whether to add
additional PFAS to CERCLA's list of hazardous substances. When
U.S. EPA initially proposed adding PFOS and PFOA to the CERCLA list
of hazardous substances, there was significant outcry from
environmental groups that argued that the proposed listing
didn't go far enough while industry groups argued that CERCLA
was the wrong tool to address PFAS contamination. U.S. EPA's
solicitation of comments on whether to add additional PFAS to the
CERCLA hazardous substance list is certain to generate significant
input from both groups.
In its ANPR, U.S. EPA seeks input on whether it should designate as CERCLA hazardous substances (1) seven additional PFAS and their salts and structural isomers; (2) precursors of these seven PFAS, plus the precursors of PFOA and PFOS; and (3) categories of PFAS. The seven specific PFAS called out in the ANPR are perfluorobutanesulfonic acid (PFBS), perfluorohexanesulfonic acid (PFHxS), perfluurononanoic acid (PFNA), hexaluoropropylene oxide dimer acid (HFPO-DA, aka GenX), perfluorobutanoic acid (PFBA), perfluorhexanoic acid (PFHxA), and perfluorodecanoic acid (PFDA). U.S. EPA selected these seven PFAS based on the availability of toxicity information previously reviewed by U.S. EPA and other Federal agencies.
In addition to seeking information on these specific seven PFAS, U.S. EPA also seeks comments on whether to add to the list of CERCLA hazardous substances salts and precursors of these seven PFAS (as well as precursors of PFOA and PFOS). Some PFAS can be formed by the degradation of other chemical substances and U.S. EPA's ANPR solicits input on which substances do in fact degrade into these specific PFAS compounds and the manner in which this degradation might occur.
Finally, the ANPR seeks input on whether U.S. EPA should designate groups or categories of PFAS as CERCLA hazardous substances, noting that PFAS may share similar characteristics such as chemical structure, physical and chemical properties, mode of toxicological action, precursors, degradants, or co-occurrence. U.S. EPA references its 2020 Significant New Use Rule (SNUR) for long-chain perfluoroalkyl carboxylate (LCPFAC) as an example of its regulation of a category of PFAS. Again, environmental groups have long sought to compel U.S. EPA to regulate PFAS as a class while industry groups have argued to the contrary, pointing out the substantial differences in toxicity and physical/chemical characteristics between different PFAS.
Like U.S. EPA's proposal to designate PFOS and PFOA as CERCLA hazardous substances, U.S. EPA's latest ANPR is certain to generate input from a broad spectrum of commenters. The comment period currently is set to expire on June 12, 2023 (60 days from the date of publication). We will continue to provide timely updates on U.S. EPA's ongoing efforts to designate certain PFAS as CERCLA hazardous substances at the Corporate Environmental Lawyer blog.
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