EPA designates 2 key PFAS chemicals as hazardous under Superfund law

WASHINGTON—The U.S. Environmental Protection Agency designated two widely used PFAS chemicals as hazardous substances under the Superfund law, and will work to make sure polluters pay to clean up their contamination.

The EPA on April 19 issued its final rule placing PFOS (perfluorooctanesulfonic acid) and PFOA (perfluorooctanoic acid) on the hazardous substances list under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund.

Exposure to PFAS substances—also known as "forever chemicals"—has been linked to various forms of cancer, liver and heart issues, and immune and developmental damage to infants, according to the EPA's news release.

But those in the fluoroelastomers and fluoropolymers industry maintain that the PFAS associated with their materials and products should be treated differently than other PFAS—such as PFOA and PFOS—because those used in FKM and FP have widely been found to be chemicals "of lesser concern."

They said PFOA and PFOS, small molecule surfactants sometimes used in polymerization processes, have been linked to negative impacts.

PFOA was formerly used to make DuPont's Teflon material, while PFOS was an ingredient in 3M's Scotchgard, but had been phased out of most usages because of the potential health risks.

After the EPA issued its April 19 rule on PFAS and PFOS, business groups largely supported science-based regulations to protect public health, but saw the rule as overreaching and severely flawed.

Likewise, a number of non-profits and other groups put out statements commending the EPA and saying the rule gives the agency new tools to address the presence of PFAS at sites across the U.S.

The rule deeming the two PFAS chemicals as hazardous substances came just nine days after the EPA unveiled the first national drinking water standards for PFAS.

By taking this action under CERCLA, the EPA said it is addressing PFOA and PFOS contamination by enabling investigation and cleanup of the chemicals and ensuring that leaks, spills and other releases are reported. It also sees it as the next step in the EPA's PFAS Strategic Roadmap it unveiled in October 2021.

"President Biden understands the threat that 'forever chemicals' pose to the health of families across the country," EPA Administrator Michael Regan said in a statement. "... Designating these chemicals under our Superfund authority will allow EPA to address more contaminated sites, take earlier action and expedite cleanups, all while ensuring polluters pay for the costs to clean up pollution threatening the health of communities."

The EPA said both chemicals meet the statutory criteria for designation as hazardous substances. Under the rule, entities are required to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound within a 24-hour period to the National Response Center, state, tribal and local emergency responders. The designation of PFOA and PFOS as hazardous substances under CERCLA enables the agency to use one of its strongest enforcement tools to compel polluters to pay for or conduct investigations and cleanups.

The final rule, the EPA added, also means that federal entities that transfer or sell their property must provide notice about the storage, release or disposal of PFOA or PFOS on the property and guarantee that contamination has been cleaned up or, if needed, that additional cleanup will occur in the future. It also will lead the Department of Transportation to list and regulate these substances as hazardous materials under the Hazardous Materials Transportation Act.

The rule will be effective 60 days after publication in the Federal Register.

In addition to the final rule, the EPA issued a separate CERCLA enforcement discretion policy that the agency said makes clear it will focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used the chemicals in the manufacturing process, federal facilities and other industrial parties.

"The policy also reflects that EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including farmers, municipal landfills, water utilities, municipal airports and local fire departments," the agency said in a news release.

Congress established CERCLA—or Superfund—in 1980, to allow the EPA to clean up contaminated sites. It also forces the parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work.

The Superfund program addresses more than 800 hazardous substances, including widespread, highly mobile and persistent chemicals, according to the EPA.

The American Chemistry Council and the National Association of Manufacturers both said the new rule is ill-advised.

The ACC said it is focused on two substances—PFOA and PFOS—that haven't been made in the U.S. in almost a decade.

"We support strong, science-based regulations that are protective of public health and the environment. However, the scientific justification EPA uses for this action is severely flawed," the ACC said in a statement provided to Rubber News. "EPA's basis for the health effects of these chemistries has been undercut by peer-reviewed research, and EPA's own Science Advisory Board severely criticized much of the underlying science EPA is relying upon."

The association also said CERCLA is an expensive and unworkable means to achieve remediation for these chemicals. "CERCLA is fraught with unintended consequences, and will likely result in extensive, unnecessary delays for cleanups. There are more effective and timely means to address potential site remediation through existing regulatory processes," the ACC said.

As for the separate discretion policy, the association said the stakeholders that won't be targeted still will be subject to significant costs, including increased management and litigation costs.

"It is for these reasons that CERCLA is not a workable tool to address this issue and will have unintended consequences for a broad range of stakeholders," the ACC said.

The EPA's "unprecedented use of CERCLA authority," will hurt President Biden's goal of growing the U.S. manufacturing sector, Chris Netram, NAM managing vice president of policy, said in a statement.

"The unique and unmatched chemical bond of these compounds means that there are no existing replacements for the critical products they make up," Netram said. "The NAM is not opposed to commonsense regulations of PFAS chemicals, and manufacturers are committed to environmental stewardship, while recognizing in many cases we will need to continue to use these chemicals for the foreseeable future.

"However, designating these compounds as hazardous substances is a blunt, overreaching decision that will make it harder for our industry to create innovative products and jobs."

Lathrop GPM, a national law firm that focuses on helping clients mitigate PFAS-related risks, said the effects of the hazardous chemicals designation will be far-reaching and extend beyond the authority EPA has under the Superfund to address hazardous substances at contaminated sites.

"Given these sweeping changes, the way they were promulgated and the high costs that will accompany them, legal challenges to EPA's new PFAS designation are inevitable," Lathrop GPM said in an alert issued after the final rule was announced.

Previously, the EPA could only address releases of PFOA and PFOS as "pollutants or contaminants" under CERCLA if they presented an "imminent and substantial danger," the law firm said. "With the designation, EPA now can deploy a litany of tools under CERCLA to investigate and clean up air, water, groundwater and soil in which PFOA and PFOS are present at existing and new Superfund sites."

Other groups, however, welcomed the EPA's actions.

"For far too long, the unchecked use and disposal of toxic PFAS have wreaked havoc on our planet, contaminating everything from our drinking water to our food supply," said David Andrews, deputy director of investigations and a senior scientist at the non-profit Environmental Working Group. "Urgent action is needed to clean up contaminated sites, eliminate future release of these pollutants and shield people from additional exposure."

The EWG also claimed that companies like DuPont and 3M hid the potential harm of PFAS from regulators, workers and neighboring communities.

"The rule will finally hold PFAS polluters accountable," said Melanie Benesh, EWG's vice president for government affairs. "It ensures that polluters, not taxpayers, bear the cost of cleaning up these toxic forever chemicals."

Safer States, a national alliance of environmental health organizations and coalitions, said EPA's commitment comes after years of action on PFAS by states and leading retailers nationwide. The group said in a statement that more than half of U.S. state attorneys general have initiated legal action against the chemical manufacturers and key users to secure resources for cleanup, and at least eight state governments have added PFAS to their state's hazardous substances regulations.

"States will continue to act to reduce use of PFAS and clean up contamination," said Sarah Doll, national director of Safer States. "This new EPA action will complement state actions and make it easier to hold them accountable and clean up contaminated sites. We applaud EPA for taking this step and encourage them to take the next step and list all PFAS under the Superfund law."

The Great Lakes PFAS Action Network said the new designation of PFOA and PFOS will allow for accelerated cleanup actions of the forever chemicals. "By designating PFOA and PFOS as hazardous substances under CERCLA, the EPA is taking action to ensure PFAS-impacted communities are accounted for and that PFAS polluters are held accountable for the cost of cleaning up their mess," said Tony Spaniola, co-chair of GLPAN.

The Michigan League of Conservation Voters said by including sites contaminated with the chemicals on the Superfund cleanup list that areas of potential exposure—such as in Rockford, Mich.—can be addressed much sooner.

"We applaud the EPA for taking action to ensure communities impacted by toxic PFAS contamination receive the assistance they need to ensure contamination is cleaned up and polluters are held accountable," said Bentley Johnson, federal government affairs director for the organization.

Litigation related to PFAS also has been pervasive.

Most recently, the U.S. District Court in Charleston granted final approval in late March to a previously announced settlement between 3M Co. and U.S. public water suppliers over claims 3M contaminated water sources with PFAS chemicals. Under terms of the agreement, 3M will pay between $10.3 billion and $12.5 billion over the next 13 years to assist the water suppliers with PFAS treatment technologies and support mitigation efforts for eligible PWS who detect PFAS in the future.