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Volume XIII, Number 150


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May 29, 2023

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EPA Seeks Comments on Potential Designation of Additional PFAS as CERCLA Hazardous Substances

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. 

Which PFAS may EPA Regulate?

The ANPRM seeks public input regarding the possible designation as hazardous substances of:

  1. Seven PFAS besides Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonic acid (PFOS):

    • Perfluorobutanesulfonic acid (PFBS), CASRN 37573-5

    • Perfluorohexanesulfonic acid (PFHxS), CASRN 35546-4

    • Perfluorononanoic acid (PFNA), CASRN 37595-1

    • Hexafluoropropylene oxide dimer acid (HFPODA), CASRN 13252-13-6 (known as GenX)

    • Perfluorobutanoic acid (PFBA) CASRN 37522-4

    • Perfluorohexanoic acid (PFHxA) CASRN 30724-4

    • Perfluorodecanoic acid (PFDA) CASRN 33576-2

  2. Precursors to PFOA, PFOS, and the listed PFAS; and/or

  3. Categories of PFAS.

What Information is EPA Seeking?

EPA makes twelve specific requests for information to supplement its own data on the human health effects, mobility, persistence, and prevalence of these substances. The requests are divided into three categories. 

  • First, EPA seeks additional scientific literature or data on the seven listed PFAS, whether any other PFAS should be designated, and information on the potential direct and indirect costs and benefits of designating these substances.

  • Second, EPA is seeking scientific literature or data related to the environmental degradation of precursors to PFOA, PFOS, or the seven listed PFAS, as well as potential cost and benefit information associated with the designation of these precursors.

  • Third, EPA seeks information and comments on whether it should designate PFAS as hazardous substances using a categorical approach.

When are Comments Due?

Comments are due on June 12, 2023, with comments on the information collection provisions (Paperwork Reduction Act) due on May 15, 2023.

© 2023 Beveridge & Diamond PC National Law Review, Volume XIII, Number 104

About this Author

Nessa Coppinger Environmental Attorney Beveridge & Diamond Washington, DC

Nessa focuses her practice on complex environmental litigation, including multi-district litigation and multi-party product liability.

Clients rely on Nessa to help them solve their most complicated, expensive, and intractable problems. She has led significant trial court and appellate matters, including federal appeals, to a successful conclusion. She has experience with a range of high-stakes litigation, including mass environmental claims, coordinated litigation with federal government entities, class action, and single-party litigation. Nessa also counsels on and litigates...

Jeanine L.G. Grachuk Environmental Attorney Beveridge & Diamond Boston, MA

Jeanine is a top-rated Massachusetts environmental lawyer with extensive experience in air, water, and waste issues arising within a variety of industrial sectors.

Solving puzzles is what Jeanine enjoys most about environmental law. She likes taking a complicated set of facts hidden in environmental reports and unpacking the information until the key legal issues are revealed.

When providing advice to clients, Jeanine listens for what they need—whether it’s a quick and actionable answer, a trusted counselor, or a gut check—in addition to their legal questions. She also...

Augustus E. Winkes Environmental Attorney Beveridge & Diamond Seattle, WA


Augustus E. Winkes focuses his practice on contaminated site cleanup and litigation under CERCLA and state Superfund statutes. He is the deputy for the firm’s CERCLA, Brownfields, and Subsurface Contamination practice group.

He also advises clients on regulatory compliance and defends enforcement actions under federal and state hazardous waste, water quality, air quality, and climate change laws, and he has experience in natural resource management matters.

Mr. Winkes also serves on the Stakeholder and Tribal Advisory Group tasked with providing...

Timothy F. Nevins Beveridge and Diamond Natural Resources Law

Tim focuses his practice on environmental litigation and regulatory advising.

Prior to joining Beveridge & Diamond, Tim practiced as an associate for a law firm in New York City where he counseled clients on toxic tort, groundwater, and employment litigation. Before that, he served as a judicial clerk for Hon. Paul D. Borman in the U.S. District Court for the Eastern District of Michigan.

In law school, Tim was the Articles Editor for Vanderbilt Law Review and Managing Editor for the Environmental Law...