EPA proposes to designate PFOA and PFOS as hazardous substances, putting onus on polluters

The chemical structure of PFOA: It contains molecules of carbon (black), hydrogen (white), oxygen (red), fluorine (yellow-green) and sulfur (yellow). (Creative Commons)

PFOA and PFOS, two types of perfluorinated compounds, would be regulated as hazardous waste, the EPA proposed today, a major step toward holding polluters accountable and accelerating cleanups at highly contaminated sites.

The hazardous waste designation would fall under Superfund law, also known as CERCLA. The law governs not only the clean up of hazardous waste, but it requires those responsible for the pollution to pay for the remediation. Known polluters include DuPont/Chemours, 3M and the Department of Defense, whose practices have contaminated drinking water supplies for millions of people.

“Communities have suffered far too long from exposure to these forever chemicals. The action announced today will improve transparency and advance EPA’s aggressive efforts to confront this pollution, as outlined in the Agency’s PFAS Strategic Roadmap,” said EPA Administrator Michael S. Regan. “Under this proposed rule, EPA will both help protect communities from PFAS pollution and seek to hold polluters accountable for their actions.”

If this designation is finalized, releases of PFOA and PFOS that meet or exceed the reportable quantity would have to be reported to the National Response Center, state or Tribal emergency response commissions, and the local or Tribal emergency planning committees, according to the EPA.

The proposed rule would, in certain circumstances, allow EPA to try to recover cleanup costs from a potentially responsible party or to require that party to conduct the cleanup. In addition, federal entities that transfer or sell their property will be required to provide a notice about the storage, release, or disposal of PFOA or PFOS on the property. A commitment in the deed would have to warrant that the contamination has been cleaned up or the responsible party will do so in the future, if necessary.

However, depending on the amount and nature of the release of PFOA or PFOS, it will not always trigger a cleanup, liability, enforcement action or addition of a site to the Superfund list.

The EPA said it anticipates that a final rule would encourage better waste management and treatment practices by facilities handling PFOA or PFOS. The reporting of a release could potentially accelerate privately financed cleanups and offset potential harm to human health and the environment.

Superfund law also covers the disposal and transport of hazardous waste; this is important because currently it is legal to place items containing PFOA and PFOS in municipal solid waste landfills. Although these landfills are lined, those liners degrade over time.

Landfills also capture leachate — garbage juice and rain — in tanks; the leachate is then either shipped offsite to a wastewater treatment plant or sent via sewer connection. Either way, PFOA and PFOS continue to pollute the environment because wastewater treatment plants can’t remove the compounds using traditional methods. Those plants then discharge PFOA and PFOS back into the drinking water supply. Jill Witkowsi Heaps, senior attorney with Earthjustice, said Superfund law doesn’t limit landfill leachate containing PFAS from going into waterways, or going to sewage treatment plants and then into waterways. That would be covered under the Clean Water Act; the EPA’s proposed rule does not apply to the CWA.

In June, the EPA issued new recommended new and stricter health advisory goals for PFOA and PFOS in drinking water because scientific studies have shown that exposure can cause kidney and testicular cancers, as well as reproductive, developmental, cardiovascular, liver, and immunological effects.

For another type of compound, GenX, Chemours has sued the EPA in federal court and disputed the science.

PFOA and PFOS are widespread in the environment. They don’t degrade, earning them the nickname “forever chemicals.” Residents throughout the Upper and Lower Cape Fear Basin — Pittsboro, Fayetteville, Wilmington and Brunswick County have been especially burdened by the compounds because they live downstream of Chemours.

Today, residents who live in Brunswick County are regularly exposed to dangerous amounts of PFOA and PFOS in their tap water well above the EPA’s PFOA/PFOS health advisories. Levels in Brunwsick County range from 4 parts per trillion to nearly 9 ppt, hundreds of times above the new EPA advisories. The Northwest treatment plant is installing $122 million in upgrades to remove the contaminants.

“Families like mine living in southeastern North Carolina deserved actions like this decades ago. We’re grateful Biden’s EPA is correcting a historical harm,” said Emily Donovan, co-founder of Clean Cape Fear. “This is a necessary, good first step to hold chemical companies accountable for contaminating our drinking water and make them pay to clean up their mess. Sadly, our region continues to be exposed to more than just PFOA/PFOS. We need the EPA to also list all PFAS as Hazardous Substances and begin addressing the forever chemicals currently in commercial use.

Wilmington has already installed additional treatment systems, totaling more than $46 million; Pittsboro’s granulated active carbon filter system just went online this week, at a cost of $3.5 million. Ratepayers, not polluters, are covering these costs.

In its press release, the EPA said it will use “enforcement discretion and other approaches to ensure fairness” for minor polluters who unknowingly released the compounds.

EPA will be publishing the Notice of Proposed Rulemaking in the Federal Register in the next several weeks. Upon publication, the proposed rule will be open for a 60-day public comment period.

This story has been clarified to reflect that Chemours is suing the EPA over GenX, another type of perfluorinated compound, not PFOS or PFOA.

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EPA proposes to designate PFOA and PFOS as hazardous substances, putting onus on polluters