EPA expands PFAS crackdown with Superfund proposal

By E.A. Crunden | 08/26/2022 01:31 PM EDT

Superfund sign on a fence.

EPA today issued a proposed rule designating certain PFAS as hazardous substances under the Superfund law. markzvo/Wikipedia

Two of the most notorious “forever chemicals” are being targeted for regulation under federal Superfund law — a major move that will have sweeping implications for industry as well as affected communities across the country.

EPA today proposed designating two per- and polyfluoroalkyl substances (PFAS), as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as the Superfund law. That move would unlock a major tool for regulators seeking to recoup costs from polluters as they progress with cleanup efforts at contaminated sites.

“Communities have suffered far too long from exposure to these forever chemicals,” said EPA Administrator Michael Regan in a statement. “Under this proposed rule, EPA will both help protect communities from PFAS pollution and seek to hold polluters accountable for their actions.”

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The long-awaited proposal only targets two compounds, PFOA and PFOS, out of the larger family of chemicals, which includes thousands upon thousands. Both chemicals have been linked for years to a wide array of health impacts, including liver and kidney disease, reproductive issues and various cancers. Research on PFOA in particular has led the agency to deem it a likely carcinogen.

The two substances are also set to be regulated under the Safe Drinking Water Act in the next few years, but the Superfund designation is among the most dramatic steps taken by EPA as it seeks to rein in PFAS.

The hazardous substance designation means that releases over an established threshold will trigger the intervention of federal regulators, who will then be empowered to investigate and, if necessary, require cleanup. Not all releases would lead to cleanup or placement on the National Priorities List, and some reporting could simply lead to better waste management practices.

One of the biggest polluters in the line of fire is the Department of Defense, which contaminated military sites around the country with PFAS for decades. EPA also emphasized that it is not prioritizing smaller-scale polluters that may have unknowingly released the chemicals, but is instead targeting culprits “who have manufactured and released significant amounts of PFOA and PFOS into the environment.”

In a notable additional step, EPA said it will issue an advance notice of proposed rulemaking soon to seek public input on designating other PFAS under Superfund law — a move that could ultimately bring other members of the chemical family under the statute.

Regan was joined in his announcement by a slew of Democrats applauding the move, including Senate Majority Leader Chuck Schumer of New York and Sen. Tom Carper of Delaware, who chairs the Environment and Public Works Committee. A Republican, Pennsylvania Rep. Brian Fitzpatrick, also publicly endorsed the action, while some of the strongest words of support came from Rep. Debbie Dingell (D-Mich.), who has spent years calling for PFAS regulations.

“Forever chemicals are an urgent public health and environmental threat for communities across the country, including the ones I represent, and the number of contamination sites nationwide continues to grow at an alarming rate,” Dingell said.

EPA’s initial timeline for proposing the rule dragged out by several months. Regulators initially intended to propose the designation this past spring, but the rule got caught up in red tape at the Office of Management and Budget.

On Aug. 12, OMB finally gave the proposed rule the green light, albeit with a big setback. OMB deemed EPA’s plans to be economically significant, with impacts projected to exceed $100 million following, among other things, an evaluation from the U.S. Chamber of Commerce showing impacts around $700 million to $800 million.

That determination means that EPA will have to conduct a regulatory impact analysis, or RIA — which will open up the proposed rule to further input from OMB and the potential for some pushback (Greenwire, Aug. 24).

But EPA is moving ahead despite that additional hurdle. Today’s announcement will kick off a comment period for the proposed rule — clearing the way for a final rule that is currently on track for next year.

Pushback

Industry members have repeatedly raised concerns around Superfund designation, which is retroactive and sweeping in its liability implications.

The American Chemistry Council, which represents a number of PFAS manufacturers, heavily panned the announcement this morning. In an unattributed statement, the powerful trade organization said it supports “strong, science-based regulations that are protective of public health and the environment” but argued that the CERCLA designation would do more harm than good.

“The proposed CERCLA designation would divert resources and prevent regulators, industry, public health officials, drinking water utilities and communities from focusing on more pressing and higher priority issues, including existing delays in many state and federal cleanup programs,” the American Chemistry Council argued.

Chemical industry members have repeatedly asserted that CERCLA designation would ultimately harm manufacturing and limit the use of chemicals in necessary products. PFAS are used in items like masks worn to prevent the spread of Covid-19. Regulators and experts, however, have said designation under the statute does not amount to a ban on a chemical and simply ensures strict ramifications if thresholds are breached (E&E Daily, July 13, 2021).

Outside of the chemical industry, other sectors are also on edge. Both the waste and water industries have previously turned to Congress to seek exemptions over Superfund designation for PFAS (Greenwire, May 24). They worry that the move will open up entities like landfill and wastewater utility operators to lawsuits, whether they intentionally caused contamination or not — a concern they share with local governments, which are heavily involved with those systems. EPA will likely be engaging with those entities as it conducts its economic impact analysis.

David Biderman, executive director and CEO of the Solid Waste Association of North America, said that his organization was “troubled” by EPA’s announcement.

“It will cost billions of dollars that will be passed on to ratepayers and will likely have widespread unintended consequences, including deterring the cleanup of some sites in environmental justice communities,” Biderman said, adding that SWANA “supports regulation that targets manufacturers and other companies that profited off of PFAS and will continue to work with EPA, Congress, and the states to ensure passive receivers like landfills are not unfairly put on the hook.”

Some Republican lawmakers are also pushing back. West Virginia Sen. Shelley Moore Capito, the Environment and Public Works Committee’s ranking member, said in a statement that she is “concerned about the uncertainty and unintended consequences” stemming from the rule. Capito’s state has seen some of the highest-profile PFAS contamination in the nation.

‘Finally, the polluters must pay’

By contrast, many advocates who have long sought more aggressive regulatory measures countering PFAS lauded the announcement.

Melanie Benesh, vice president of government affairs for the Environmental Working Group, said the news was an enormous relief and marked a new chapter in the yearslong battle for PFAS regulations.

“Today’s historic proposal will mean PFAS polluters are finally held accountable,” said Benesh. “For too long, they’ve had a free pass to dump PFAS into communities and poison their neighbors. Thanks to this proposal, PFAS polluters will finally be forced to pay their fair share of cleaning up their mess.”

Other major players in the PFAS advocacy space shared similar sentiments. Mark Ruffalo, an actor who has pushed hard for accountability following his role in the thriller “Dark Waters,” which addresses PFOA contamination, said in a statement that he is grateful that polluters will be held accountable.

“We have all paid for decades — in the forms of higher care costs and higher drinking water bills — for one of the greatest environmental crimes in history,” Ruffalo said. “Now, finally, the polluters must pay.”

Rob Bilott, the famed attorney whose experiences battling PFAS manufacturer DuPont inspired Ruffalo’s role, said the decision “sends a loud and clear message” about the dangers the chemicals pose for people and the environment.

“It took over two decades to get here, but the scientific facts and truth about the health threat posed by these PFAS forever chemicals have finally prevailed over the misinformation campaigns and corporate coverups designed to mislead the public and delay action,” said Bilott.

Not all advocates were so thrilled. Tim Whitehouse, executive director of Public Employees for Environmental Responsibility, called the move “too little, too late.”

He underscored that the action does not extend to the wider world of PFAS chemistry, even as thousands of compounds continue to contaminate areas nationwide. Whitehouse also noted the many PFAS in the waste stream and argued that regulation under the Resource Conservation and Recovery Act along with CERCLA will be critical in order to truly address pollution.

EPA’s PFAS agenda

The announcement comes after a summer that has seen EPA become increasingly aggressive in its approach to PFAS.

In June, regulators debuted new health advisories for PFOA and PFOS, dropping pre-existing thresholds from 70 parts per trillion in drinking water to “near zero” levels (Greenwire, June 15). At that time, EPA also introduced new health advisories for the chemicals PFBS and HFPO-DA, the latter of which is more commonly known as GenX, its trademarked name owned by Chemours Co.

None of the advisories are legally binding, and final rules under SDWA are likely to yield higher thresholds, as official levels account for factors like economic feasibility and technological capabilities. But industry members slammed the advisories nonetheless, accusing EPA of rooting its decision in shaky science.

In retaliation, Chemours sued over the HFPO-DA advisory (Greenwire, July 14). The American Chemistry Council, which represents a number of PFAS manufacturers, followed with its own lawsuit weeks later (Greenwire, Aug. 1). That second legal action specifically references the PFOA and PFOS advisories.

Similarly heated responses could follow the CERCLA announcement, although experts have been confident in stating that regulators have the power to target PFAS under the statute.

Perhaps more significant has been EPA’s increasing moves toward regulating more PFAS under CERCLA, possibly by subgroup (E&E News PM, June 22). It is unclear which compounds might fall under such an extended crackdown, but possibilities could include PFBS and GenX, as those chemicals are already drawing increasing scrutiny from regulators. EPA’s advance notice of proposed rulemaking, to be issued at the close of the new proposed rule’s public comment period, will help regulators gain more information on the issue.

While they wait for future actions, advocates are also focusing on ensuring that the current proposed rule survives. Christine Santillana, a legislative representative with Earthjustice, called on the agency to stay the course despite pushback.

“We are pleased that EPA is addressing the oldest and most infamous PFAS under the Superfund law,” said Santillana. “We urge EPA to listen to the communities who have been impacted by PFAS, and not be deterred from finalizing this rule by irrational comments from the polluters who created this public health crisis.”

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