EPA Continues the Beat with an Advanced Notice of Proposed Rulemaking for Additional CERCLA Hazardous Substance Designations for PFAS

On April 13, 2023, the Environmental Protection Agency (EPA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting input on seven potential future hazardous substance designations of per- and polyfluoroalkyl substances (PFAS) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (See Addressing PFAS in the Environment, 88 Fed. Reg. 22399, Apr. 13, 2023.)

The seven PFAS identified are:

  • Perfluorobutanesulfonic acid (PFBS), CASRN 375–73–5;
  • Perfluorohexanesulfonic acid (PFHxS), CASRN 355–46–4;
  • Perfluorononanoic acid (PFNA), CASRN 375–95–1;
  • Hexafluoropropylene oxide dimer acid (HFPO–DA), CASRN 13252–13–6 (sometimes called GenX);
  • Perfluorobutanoic acid (PFBA), CASRN 375–22–4;
  • Perfluorohexanoic acid (PFHxA), CASRN 307–24–4; and
  • Perfluorodecanoic acid (PFDA), CASRN 335–76–2.

The EPA is also requesting input on the possible designation of (1) certain precursors to perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), and specific additional PFAS and (2) categories of PFAS.

The ANPRM is a follow-up to the proposed rule that the EPA released on August 26, 2022, designating two of the most-studied PFAS—PFOA and PFOS—as hazardous substances under CERCLA. The public comment period is open for 60 days, meaning that interested parties have until June 12, 2023, to submit comments.

This development highlights the EPA’s continued efforts to expand the agency’s regulatory authority over PFAS. As mentioned in previous Pillsbury posts, the legal consequences of potential CERCLA “hazardous substance” designations may be significant, given the statute’s onerous strict liability regime of joint and several liability over different classes of potentially responsible parties, including past and present owners and operators of contaminated properties, as well as transporters and arrangers. Such implications stand to be accentuated in the case of PFAS, given the low concentrations at which the EPA has proposed to regulate at least some of these compounds. For example, both the interim health advisories and the proposed maximum contaminant levels for PFOA and PFOS are in the parts per trillion range, which is orders of magnitude lower than the parts per million or parts per billion range at which the EPA regulates other industrial chemicals. Moreover, many states have their own analogues of CERCLA, some of which are more stringent than the federal statute in terms of the numbers of hazardous substances regulated and the target cleanup levels that they use.

It is particularly notable that the EPA is moving forward with the additional proposed hazardous substance designations prior to finalizing the designations for PFOA and PFOS, which attracted significant pushback from industry due to the potentially sweeping impacts of a potential CERCLA hazardous substance designation. Among other things, critics of the earlier proposed rule have argued that a CERCLA designation is premature given the lack of experience that the EPA has had with such rulemakings, especially in terms of assessing their economic impacts to industry. The issue of economic impact was relevant to the earlier rulemaking, given that the Office of Management and Budget had required that the EPA release a Regulatory Impact Analysis before finalizing the August 26, 2022, proposed rule. One of industry’s main criticisms of the August 26, 2022, proposed rule is that the economic data that the EPA provided in the preamble covers only the costs to industry of complying with the environmental release reporting of CERCLA and not the more significant requirements associated with environmental remediation and cost recovery. The U.S. Chamber of Commerce has estimated that the latter costs to industry are likely to exceed $700 million annually.

Additional criticisms of the August 26, 2022, rulemaking that may carry over in industry comments to the ANPRM pertain to the prematurity of CERCLA designations in the absence of published EPA enforcement policies regarding PFAS contamination, widely available analytical test methods and disposal strategies for any PFAS that may be removed from the environment.

Ultimately, the ANPRM reinforces the potential value to businesses that may have a connection to PFAS to be proactive in terms of evaluating their liability exposure, taking measures to mitigate or offset any liabilities, and implementing longer term strategies to phase out any PFAS used in manufacturing or processing operations. Furthermore, as the public notice period on the ANPRM has not yet closed, interested parties may wish to consider the benefits of submitting comments to perhaps influence the course of the proposed rulemaking. Pillsbury has seasoned attorneys who can assist with all such tasks, as well as the evolving law regarding PFAS.