On September 6, 2022, the United States Environmental Protection Agency (“USEPA”) had previously issued a notice of proposed rulemaking to designate two (2) specific PFAS substances, known as perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as CERCLA hazardous substances. We have previously blogged about this Notice and it can be found on our website if of interest. The comment period to that proposed rulemaking has now closed and USEPA is presently evaluating comments received.
In the meantime, however, USEPA is considering a new initiative to expand the list of Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) regulated PFAS beyond PFOA and PFOS to include seven (7) additional PFAS, their salts and precursors and, possibly, certain categories of PFAS.
In a pre-publication notice issued by the USEPA on April 13, 2023 (to be published in the Federal Register on that same date), USEPA announced its intention to consider expansion of its CERCLA hazardous substances list developed under potentially to include seven (7) additional per- and polyfluoroalkyl substances (PFAS) on that list.
As set forth in the pre-publication notice, additional PFAS under consideration for regulation includes:
• 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.
USEPA will also be giving consideration to the precursors to PFOA, PFOS, and other PFAS listed above as well as whether USEPA should take action to designate whole categories of PFAS based on shared characteristics among the PFAS listed in those categories.
To these ends, USEPA is seeking a variety of data sources and information to assist them is deciding whether to expand the CERCLA list. The Comment period will run until approximately July 6, 2023 (i.e., sixty (60) days from publication in the Federal Register which is anticipated on April 13, 2023).
Duane Morris has an active PFAS Team to help organizations and individuals plan, respond to, and execute on your PFAS issues and initiatives. We would be happy to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you. For more information or if you have any questions about this post, please contact Lori Mills, the author, or Lindsay Brown, Sharon Caffrey, Brad A. Molotsky, Alice Shanahan, Seth Cooley, Alyson Walker Lotman, Kelly Bonner, Sharon Caffrey or the attorney in the firm with whom you in regular contact or the attorney in the firm with whom you are regularly in contact.