Regulatory Alert: EPA Releases ANPRM on Whether to Designate PFOA/PFOS as Hazardous Substances
January 20, 2021
Yesterday evening the U.S. Environmental Protection Agency (EPA) announced the release of an advance notice of proposed rulemaking (ANPRM) that requests comment from the public and industry stakeholders on whether EPA should consider proposing to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as 'hazardous substances' under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). As airports are aware, AAAE has previously raised concerns that such a designation would subject airports to expensive and costly litigation and clean-up efforts for the utilization of firefighting foam that airports are required by regulation to use without any available non-PFAS alternatives. AAAE has pushed back on any such designations without any corresponding protection for airports. 
Summary of EPA's ANPRM. In February 2020, EPA issued a PFAS Action Plan Program Update that reiterated the agency's intent and ongoing plans to designate PFOA and PFOS, two types of PFAS chemicals, as hazardous substances under CERCLA. However, in the ANPRM document, EPA indicated that the agency is 'reconsidering' whether to pursue such a designation in light of success the agency has had in addressing PFAS in drinking water. Nevertheless, the agency stated that they are requesting feedback on what additional or alternative regulatory steps or authorities would be best suited and could be most appropriately tailored to address PFAS contamination in the environment. EPA specifically emphasized that they are also interested in understanding the benefits and costs associated with any such actions, including designating PFOA and PFOS as hazardous substances. 
What's Next? The ANPRM document released by EPA has not been published in the Federal Register yet. Shortly following his inauguration today, President Biden issued a regulatory freeze pausing any new regulations that the Trump Administration tried to issue in its final days. ANPRM documents are included within the scope of today's regulatory freeze. President Biden signaled during his campaign and transition that a PFOA/PFOS hazardous substance designation would be a significant priority during his tenure. AAAE will be closely monitoring whether EPA decides to publish the document and, if so, will be prepared to respond accordingly within the proposed 60-day comment period. 
If you have any questions or comments, please contact Justin Barkowski at justin.barkowski@aaae.org. 
Yesterday evening the U.S. Environmental Protection Agency (EPA) announced the release of an advance notice of proposed rulemaking (ANPRM) that requests comment from the public and industry stakeholders on whether EPA should consider proposing to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as 'hazardous substances' under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). As airports are aware, AAAE has previously raised concerns that such a designation would subject airports to expensive and costly litigation and clean-up efforts for the utilization of firefighting foam that airports are required by regulation to use without any available non-PFAS alternatives. AAAE has pushed back on any such designations without any corresponding protection for airports. 
Summary of EPA's ANPRM. In February 2020, EPA issued a PFAS Action Plan Program Update that reiterated the agency's intent and ongoing plans to designate PFOA and PFOS, two types of PFAS chemicals, as hazardous substances under CERCLA. However, in the ANPRM document, EPA indicated that the agency is 'reconsidering' whether to pursue such a designation in light of success the agency has had in addressing PFAS in drinking water. Nevertheless, the agency stated that they are requesting feedback on what additional or alternative regulatory steps or authorities would be best suited and could be most appropriately tailored to address PFAS contamination in the environment. EPA specifically emphasized that they are also interested in understanding the benefits and costs associated with any such actions, including designating PFOA and PFOS as hazardous substances. 
What's Next? The ANPRM document released by EPA has not been published in the Federal Register yet. Shortly following his inauguration today, President Biden issued a regulatory freeze pausing any new regulations that the Trump Administration tried to issue in its final days. ANPRM documents are included within the scope of today's regulatory freeze. President Biden signaled during his campaign and transition that a PFOA/PFOS hazardous substance designation would be a significant priority during his tenure. AAAE will be closely monitoring whether EPA decides to publish the document and, if so, will be prepared to respond accordingly within the proposed 60-day comment period. 
If you have any questions or comments, please contact Justin Barkowski at justin.barkowski@aaae.org. 
