More PFAS Mulled for Hazardous Substance Designation By EPA

The EPA is seeking views and information to help it decide whether to designate seven specific PFAS and some groups of the chemicals as hazardous substances under the Superfund law.

The Environmental Protection Agency will officially release tomorrow an advanced notice of proposed rulemaking to increase the number of per- and polyfluoroalkyl substances, or PFAS, considered hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as CERCLA or the Superfund law.

The agency would consider the listed PFAS and groups of those chemicals in addition to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and their salts and structurally related forms, which it proposed as hazardous substances in September.

The notice doesn’t offer a timeline by which the EPA plans to make a decision, but says the agency will consider the comments and information it receives as it decides whether to designate some or all of the seven PFAS, some subset of them, or some group of the chemicals. Comments are due by June 12.

The seven specific PFAS the agency could designate are:

• perfluorobutanesulfonic acid (PFBS), Chemical Abstract Service (CAS) No. 375-73-5;
• perfluorohexanesulfonic acid (PFHxS), CAS No. 355-46-4;
• perfluorononanoic acid (PFNA), CAS No. 375-95-1;
• hexafluoropropylene oxide dimer acid (HFPO-DA), CAS No. 13252-13-6 and sometimes called GenX;
• perfluorobutanoic acid (PFBA), CAS No. 375-22-4;
• perfluorohexanoic acid (PFHxA), CAS No. 307-24-4; and
• perfluorodecanoic acid (PFDA), CAS No. 335-76-2.

The groups of PFAS the agency is considering are compounds that become after release PFOA, PFOS, and the seven PFAS listed above, or some other category of the chemicals.

Views Sought

The notice offers a structural definition of PFAS that persist in the environment and people’s bodies, build up in the food chain, and are associated with boosting the risk of a spectrum of illnesses. But the agency invited views on other ways it could group PFAS that it may designate as hazardous substances.

PFOA and PFOS qualify as hazardous substances because their potential adverse human health effects and recognized mobility, persistence, and prevalence may present substantial danger to people or the environment, the agency said.

The agency doesn’t have to have information on all those criteria to designate a PFAS compound as hazardous under CERCLA, but the EPA invited such information.

The CERCLA designation gives the EPA increased authorities to speed cleanups. It also subjects polluters to strict and joint and several liability, which means a party that has contributed only a small amount of waste at a Superfund site can be responsible for 100% of the cleanup costs.

The EPA already is developing a PFAS enforcement discretion and settlement policy to address concerns that water utilities, farm associations, and other groups have raised about being caught in CERCLA’s liability through no fault of their own. But the agency’s discretion wouldn’t prevent a potentially responsible party from suing another party to help recoup cleanup costs.

The agency invited comment on PFAS enforcement and liability under CERCLA.

Ongoing Effort

The advanced notice is the agency’s latest effort to regulate the chemicals.

The EPA proposed earlier last month to regulate six PFAS under the Safe Drinking Water Act.

The EPA also is developing a final rule requiring any company that has made or imported PFAS since Jan. 1, 2011, to submit production volume, use, and other information about those chemicals and their uses to the agency.