EPA Requests Feedback on Designating Additional PFAS Chemicals as Hazardous Substances Under CERCLA

On April 12th, the U.S. Environmental Protection Agency (EPA) released an advance notice of proposed rulemaking (ANPRM) that requests feedback from the public on whether the agency should designate additional PFAS chemicals-beyond PFOA and PFOS-as 'hazardous substances' under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known as the Superfund law. 

Last year, EPA proposed to designate two PFAS chemicals, PFOA and PFOS, which have been commonly used in aqueous film forming foam (AFFF), as hazardous substances. For airports, such a designation could trigger potentially costly litigation and cleanup efforts to address PFOA and/or PFOS related contamination. Other PFAS chemicals, aside from PFOA and PFOS, have also been found in historical and current variations of AFFF. Thus, this latest action from EPA, if successfully completed in the future, could create additional liability challenges for airports in managing the impacts of historical AFFF use. AAAE has repeatedly urged, and will continue to urge, EPA and lawmakers to provide airports with protection from CERCLA liability if it can be shown that an airport's use of AFFF complied with federal requirements. 

EPA's ANPRM and request for comments was published in the Federal Register on April 13th, triggering a 60-day comment period. Feedback to the agency will be due no later than Monday, June 12. AAAE will be working with our members to respond to the proposal and emphasize potential impacts on the airport industry should EPA move forward with a formal rulemaking action. 

Background on CERCLA. Under CERCLA, EPA has the authority to respond directly to releases, or threatened releases, of any 'hazardous substances' that may endanger public health and/or the environment. The statute gives EPA the authority to conduct short-term 'removal' actions when there is a release or threatened release and long-term 'remedial' actions to permanently and significantly reduce risks associated with releases of the substance. Most importantly, CERCLA imposes retroactive, joint and several, and strict liability on parties that are responsible, in whole or in part, for the release of any hazardous substance. 

Summary of EPA's ANPRM and Request for Feedback. In the ANPRM released on April 12, EPA indicated that the agency is seeking input and data to determine whether to designate the following as hazardous substances under the Superfund law: 

• (1) Seven PFAS, besides PFOA and PFOS, and their salts and structural isomers, or some subset thereof, which include: perfluorobutanesulfonic acid (PFBS), CASRN 375-73-5; perfluorohexanesulfonic acid (PFHxS), CASRN 355-46-4; perfluorononanoic acid (PFNA), CASRN 375-95-1; hexafluoropropylene oxide dimer acid (HFPO-DA), CASRN 13252-13-6 (sometimes called GenX); perfluorobutanoic acid (PFBA) CASRN 375-22-4; perfluorohexanoic acid (PFHxA) CASRN 307-24-4; and perfluorodecanoic acid (PFDA) CASRN 335-76-2;
• (2) Precursors to PFOA, PFOS, and other PFAS listed above; and
• (3) Categories of PFAS

In deciding whether to move forward with a proposed rule or designation, EPA will be examining data to determine whether any of these additional PFAS, or certain categories of PFAS, may present substantial danger to the public health or welfare or the environment.

Recap of EPA's PFAS-Related Actions Under CERCLA. It is important to explain how today's request fits in with the agency's broader strategy to address PFAS-related concerns using its authority under the Superfund law known as CERCLA. There are now three separate initiatives that you should be aware of and tracking: 

• Proposed Rule on PFOA/PFOS Hazardous Substance Designations: In September 2022, EPA released a proposed rule that would designate PFOA and PFOS as CERCLA hazardous substances based on the potential human health and environmental hazards associated with exposure to the chemicals. AAAE strongly responded to the proposal, arguing that the designation would be a draconian measure that causes unintended consequences and unfairly punishes airports for procuring and using AFFF in accordance with federal requirements and in the interest of public safety. EPA is targeting late summer 2023 to publish a final rule; however, we believe that is ambitious given the number of comments and procedural hurdles that will need to be addressed. 

• ANPRM on Additional PFAS Hazardous Substance Designations: On April 12th, EPA released an ANPRM that only serves as a preliminary notice that the agency is considering developing a formal, proposed rule to designate additional PFAS chemicals, beyond PFOA and PFOS, as hazardous substances. The ANPRM does not constitute a proposed rulemaking. Nevertheless, it is still important to weigh in at this stage to potentially influence the direction of future rulemaking initiatives in this area. 

• EPA's CERCLA PFAS Enforcement Discretion Policy: As part of our response to EPA last year, AAAE requested that EPA ensure airports are not being 'punished' for complying with federal mandates and guidance and provided liability protection. In March, EPA indicated that the agency intends to develop an enforcement discretion policy that would protect some entities, including airports, from EPA enforcement actions relating to PFAS contamination under the Superfund law. While this is a positive development and would provide some protection for airports, airports could still be subject to potential private party actions, which is why AAAE will continue to advocate on the Hill for a liability exemption for airports. 

What's Next? EPA plans to publish the ANPRM in the Federal Register on April 13th, triggering a 60-day comment period where the public will have an opportunity to submit input. EPA has not provided any indication whether it intends to move forward with a proposed rule for additional PFAS chemicals beyond PFOA and PFOS. We suspect it will depend on the data that the agency is currently reviewing and whether they believe such chemicals constitute a threat to human health or the environment. 

AAAE will continue to engage with lawmakers and regulators and work to prevent airports from being financially responsible for the impacts of historical usage of AFFF because FAA has required airports to use AFFF at their facilities for decades. AAAE has pushed back, and will continue to push back, on any hazardous substance designation of PFOA, PFOS, or any other PFAS chemicals in AFFF without corresponding liability protection for airports.

Resources on EPA's CERCLA PFAS-Related Actions
• EPA's April 13 ANPRM on Designating Additional PFAS as Hazardous Substances 
• EPA's March 2023 Presentations on Proposed CERCLA PFAS Enforcement Discretion Policy 
• AAAE's November 7 Comments to EPA on Proposed Rule 
• EPA's Proposed Rule to Designate PFOA/PFOS as Hazardous Substances 
• EPA's Summary of the Proposed Rule to Designate PFOA/PFOS as Hazardous Substances 
• AAAE's August 26 Regulatory Alert on EPA's Proposed Rule to Designate PFOA/PFOS as Hazardous Substances 
• EPA's Strategic Roadmap on PFAS (Oct. 2021)