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Seven More PFAS for Superfund? EPA’s Potential Designation of New Hazardous Substances Under CERCLA

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The EPA (or “Agency”) is seeking public input and data regarding the potential future designation of seven per- and polyfluoroalkyl substances (“PFAS”) under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The seven PFAS subject to potential future designation include those used as a surfactant in industrial processes, in stain-resistant fabrics, in food packaging, and in firefighting foam.

If EPA finalizes these designations it could impact certain site clean ups and result in additional litigation. Because of the widespread use of PFAS in industrial and commercial products, these PFAS may exist at low levels in many properties, even without the owner’s knowledge. Here is what you need to know. EPA published the Advanced Notice of Proposed Rulemaking (“ANPRM”) in the Federal Register on April 13, 2023. Comments on the ANPRM are due by June 12, 2023.

For more background on PFAS, CERCLA, and what it means to be a “hazardous substance” please see this prior post.

What is EPA proposing to do?

PFAS are a class of thousands of manufactured chemicals that have been used in industry and consumer products since the 1940s. PFAS can be present in water, soil, air, and food as well as materials found in homes and workplaces. Some PFAS have been shown to be environmentally persistent and harmful to human health and the environment at certain exposure levels.

EPA is considering the potential designation of the following seven PFAS and their salts and structural isomers (or some subset thereof) as hazardous substances under CERCLA:

  • Perfluorobutanesulfonic acid (“PFBS”);
  • Perfluorohexanesulfonic acid (“PFHxS”);
  • Perfluorononanoic acid (“PFNA”);
  • Hexafluoropropylene oxide dimer acid (HFPO-DA) (also sometimes called “GenX”);
  • Perfluorobutanoic acid (“PFBA”);
  • Perfluorohexanoic acid (“PFHxA”); and
  • Perfluorodecanoic acid (“PFDA”).

Specifically, the Agency asks for public comment and data regarding whether these seven PFAS may present a substantial danger to public health or welfare or the environment.

Has EPA done anything like this before?

As we previously discussed, in August 2022, EPA proposed to designate two of the more well-known PFAS — perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) — as hazardous substances under CERCLA. EPA has not yet finalized that designation.

EPA also notes that it is considering whether to initiate a future action that would potentially designate groups or categories of PFAS as hazardous substances based on shared characteristics. This would be a new approach and potentially open the door to the designation of far greater numbers of PFAS chemicals.

How did EPA Identify these Seven PFAS?

EPA identified the seven PFAS subject to the ANPRM based on the availability of toxicity information previously reviewed by it and other federal agencies. This includes the final human health toxicity assessments for PFBS, GenX chemicals, and PFBA, and the final Toxicological Profile for Perfluoroalkyls, released by the Agency for Toxic Substances and Disease Registry, which incorporates the minimal risk levels for, as applicable here, PFHxS and PFNA.

What Information is EPA Seeking?

To inform and assist the Agency’s decision regarding potential designation, EPA asks for the following:

  1. Additional published scientific literature or data on the environmental fate, transport and prevalence of the seven PFAS (e., the mobility, persistence and/or other relevant chemical and physical properties);
  2. Identification of other PFAS that could potentially be designated as hazardous substances (based on published, scientific information); and
  3. Available information the Agency could consider in the preparation of an economic analysis associated with a potential rulemaking designating the seven PFAS as hazardous substances under CERCLA.

What Else is the EPA Considering in the ANPRM?

The Agency is also determining whether to initiate a future action that would potentially designate the precursors to PFOA, PFOS, and (possibly) the seven PFAS and their salts and isomers, as hazardous substances. The EPA, therefore, seeks input as to compounds that degrade to the named PFAS through environmental processes (i.e., biodegradation, photolysis, and hydrolysis).

As noted above, EPA also requests public input regarding the potential future designation of categories of PFAS as hazardous substances; namely, a group or category of PFAS that share one or more similar characteristics (such as chemical structure, physical and/or chemical properties, precursors, etc.).

What Happens Next?

Interested parties, including property owners who might be impacted by future PFAS designations under CERCLA, should consider commenting on the ANPRM. Following the close of the comment period, EPA will review the comments and information received. Upon such information, alongside supplemental information it has obtained itself, the Agency will determine whether a future rulemaking should address the designation of the seven PFAS or precursors as hazardous substances under CERCLA or whether one or more categories of PFAS should be designated as such.

How Does This Impact You?

This may impact you if you have in the past, are currently, or may in the future own or operate a property with PFAS contamination. Companies should consider determining whether any of their properties still store or use materials containing these seven PFAS and determine what potential pathways there might be for these materials to be released into the environment, and develop strategies to either phase out such products or limit the potential scenarios in which they could be released. Due to the widespread use of PFAS, many property owners may not know if there is PFAS present at low levels in their soil or groundwater.

Worthy of note, EPA advises in the ANPRM that the Agency is already in the process of developing a “CERCLA PFAS enforcement discretion and settlement policy” regarding CERCLA liability and enforcement. CERCLA is a strict, presumptively joint-and-several liability regime for addressing hazardous substances in the environment. Those who can potentially be held responsible for cleanup costs where a release has occurred include current owners/operators, former owners/operators, generators and arrangers of disposal of the hazardous substances, and transporters of the hazardous substances for disposal. Companies potentially impacted by the forthcoming policy should track its development and, if possible, attend the Agency’s two public listening sessions to share any concerns.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.