The ELAM Group Announces East Coast Expansion

Pivotal Deadline Approaching for PFAS Hazardous Substance Designation Under CERCLA

A key deadline is coming soon—August 11 to be exact—for the United States Environmental Protection Agency (EPA) as the extended public comment period comes to a close for designating certain per- and polyfluoroalkyl substances (PFAS), specifically perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

On April 13, 2023, EPA published in the Federal Register an Advanced Notice of Proposed Rulemaking (ANPRM) seeking public input and data to assist in the consideration of potential development of future regulations pertaining to seven specific PFAS. The public comment period was set to expire June 12, 2023—but the agency, in response to multiple requests, has now extended that deadline until August 11, 2023.

During the first public comment period, EPA received substantial feedback requesting it first clarify several points, conduct further research, and propose alternative approaches to PFAS remediation, before issuing a final rule.

Overall, the majority of requests have been made for the EPA to determine and outline the potential benefits and hardships associated with the proposed rule, and to ensure comprehensive and accurate analysis. While this may buy industries and operations more time to prepare—it also could lead to more targeted regulations once the rule is finalized.

A large group of industry associations and trade groups, including the U.S. Chamber of Commerce, Plastics Industry Association, and the National Association of Manufacturers, among others, is requesting feedback and data on 12 questions, mainly to better understand how the EPA will compile and use the data it gathers to enforce remediation.

The groups are collectively requesting the EPA release a comprehensive report regarding what information it already has about PFAS chemicals and their physical properties, as well as conduct and compile economic and community impact analysis, which is necessary for a hazardous substance designation under CERCLA. Other groups have gone further—asking EPA to improve its definitions of precursors and categories of PFAS to better understand the potential impact on communities and industries.

Other comments focus specifically on the issue of targeting water for primary remediation, saying these efforts won’t effectively stop leaching and contamination without addressing soil sources, as well. The concern is that failure to remediate PFAS contaminated soil simultaneously could lead to larger, deeper contamination plumes that are significantly more expensive to remediate in the future. Including a rule that addresses soil contamination near drinking water aquifers and streams would help prioritize soil remediation before the chemicals enter these water sources.

There is also concern about the wide range of remediation technologies available for addressing PFAS contamination, and which the EPA will use. Proposed suggestions include clarifying which methods will be utilized and exploring different technologies for remediation.

The extended deadline provides the EPA additional time to research, clarify, and gather additional public input to provide more comprehensive and accurate analysis to inform the final rule. This clarification will help reduce confusion and uncertainty in the agency efforts to enforce remediation of PFAS but, as mentioned, it will also likely lead to more direct and targeted enforcement once the rule is finalized, which is expected in February 2024.