Read the full post from Beveridge & Diamond.
On April 13, 2023, the U.S. Environmental Protection Agency (EPA) published in the federal register an Advanced Notice of Proposed Rulemaking (ANPRM) seeking public input to inform its decision whether to designate additional per-and polyfluoroalkyl substances (PFAS) as hazardous substances under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The ANPRM is not a proposed rule, but it may be the first step in the potential designation of the listed substances and the potential designation of categories of PFAS as hazardous substances. The designation of additional PFAS was a stated goal of EPA’s October 2021 Strategic Roadmap.
This ANPRM follows EPA’s September 6, 2022 proposed rule designating PFOA and PFOS as hazardous substances, which is expected to be finalized in the coming months. The designation of PFOA and PFOS as hazardous substances would be the first time in EPA’s history that a substance is designated as hazardous under Section 102(a) of CERCLA. Today’s ANPRM reiterates EPA’s position that it need not consider cost when designating a substance as hazardous under Section 102(a) of CERCLA, a position first made in the still-pending proposed rule designating PFOA and PFOS as hazardous substances.