On April 13, 2023, there was yet another announcement by the United States Environmental Protection Agency (EPA) concerning per- and polyfluoroalkyl substances (PFAS).
Advance Notice of Proposed Rulemaking
In the Advance Notice of Proposed Rulemaking (ANPRM), the EPA is seeking to add to the list of PFAS that would be hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). This would add to the previous listing of two PFAS (perfluorooctanoic acid, or PFOA, and perfluorooctane sulfonic acid, or PFOS) as CERCLA hazardous substances.
Additional PFAS as CERCLA Hazardous Substances
According to the ANPRM, the EPA is “seeking input and data to assist in its consideration of the development of potential future regulations” for the designation as hazardous substances under CERCLA of:
- 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
- Perfluorodecanoic acid (PFDA) CASRN 335-76-2
According to the announcement, “…these seven compounds were identified based on the availability of toxicity information previously reviewed by EPA and other Federal agencies.” Comments to the proposed rule are due by June 12, 2023.
The EPA also asks in the notice if there are other PFAS the EPA could consider designating as hazardous substances in a possible future rulemaking.
PFAS Litigation Growing Rapidly
According to one law blog, 3M was sued (for PFAS) on average three times a day in 2021. But it is not just large manufacturing companies that are concerned about PFAS litigation. The ubiquitous presence of PFAS opens the door for litigation for an ever-increasing list of companies, including paper companies, cosmetic companies, fast-food companies, beverage companies, airports, and much more.
An article recently published by “mondaq,” pointed to the skyrocketing PFAS litigation just with respect to product liability:
2016 – 5
2017 – 11
2018 – 54
2019 – 98
2020 – 793
2021 – 1223
2022 – 1736
Wide-Ranging PFAS Litigation Landscape
The potential litigation landscape with respect to PFAS is getting far more complicated. There is the recent push to list specific PFAS as CERCLA Hazardous Substances, the resulting Superfund listings, naming of potentially-responsible parties, and environmental groups filing lawsuits. The bottom line is that more companies are likely to face legal challenges associated with PFAS.
We will continue to follow this and other environmental regulatory developments.
If you need assistance on a PFAS or other environmental issue, contact Jeffrey Bolin, M.S. at 248-932-0228, Ext. 125.
This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
The blog was reviewed by Jeffrey Bolin, M.S. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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