Historical EPA Rule Making: Two PFA’s To Be Added to CERCLA’s Hazardous Substances List
Christen Brown
For the first time since Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) establishment the EPA is executing their authority under Section 102 to designate an additional hazardous substance. Under the statutory language, CERCLA Section 102(a) authorizes the Administrator to revise the substances specified as hazardous and designate additional hazardous substances. This section authorizes them to assign a reportable quantity (“RQ”). The RQ identifies the quantities of substances that if released require notification and sets forth the notification requirements for releases of these substances.
EPA's new proposed rule would add two polyfluoroalkyl substances (PFAS): perfluorooctanoic acid (PFOA) and perflurooctanesulfonic acid (PFOS) to the list of hazardous substances under the CERCLA, more commonly known as “Superfund.” This designation of PFOA and PFOS as hazardous substances will impact the authority and method of clean-up for sites containing these substances. Reclassifying PFOA and PFOA's is the first exercise by the EPA to designate a hazardous substance into the CERCLA. Existing hazardous substances currently covered in CERCLA derive from these authorities: CWA Hazardous Substances, CWA Toxic Pollutants. CAA Hazardous Air Pollutants, RCRA Hazardous Wastes, Toxic Substance Control Act, section 7. Currently CERCLA has a list of 800 hazardous substances, each listed under the “List of Hazardous Substances and Reportable Quantities” in the Code of Federal Regulations Title 40, Section 302.4.
Three direct effects of the proposed rule include the following: 1) new reporting requirements , 2) "entities selling or transferring federally-owned property must provide notice about on-site PFOA/PFOS storage, release, or disposal and warrant that remedial action has been or will be taken on any hazardous substances on the property, either before or after the transaction", and 3) a requirement that PFOA and PFOS be listed as hazardous materials under the Hazardous Materials Transportation Act. Indirect effects include the recovery of site cleanup costs from potential responsible parties under CERCLA’s joint and several liability, costs are estimated to at $11 billion to $22 billion for private party compliance and $700 to $800 million at non-federal sites. Currently, corporations attributed to the manufacturing of products containing PFAS such as DuPont, 3M Co., Chemguard Inc., Kiddle-Fenwal Inc., Nationak Foam Inc., and Dynax Corp. currently face approximately 6,400 federal cases alone in PFAS related lawsuits. Therefore, for these corporations, including an undetermined amount of additional private parties, this proposed rule by the EPA represents additional suits in the future.
The significance of this EPA rule adding PFOA and PFOS’s as a hazardous substance is that these “forever chemicals,” that are among the most persistent toxic compounds in existence, now has a federal agency that may provide relief to effected communities. PFAS’s can be found in drinking water, food, food packaging and personal care products. Traces are found in blood, including in newborn babies. They essential last “forever” as they never break down in the environment. PFAS were designed to be to repel fire, water, oil and stains, which made them highly desirable in products such as stain and water resistant fabrics, non-stick products, polishes, waxes, paints, cleaning products, and fire-fighting foam. Currently, 600 PFAS are still actively used in the United States.
Some may argue the rule does not go far enough as PFAS chemical substances include more than 10,000 additional classifications which are not incorporated into EPA’s rule. Across the nation 2,500 sites were estimated to have PFAS contaminations. The highest levels of PFAS were detected in major metropolitan areas such as Miami, Philadelphia, New Orleans, and New Jersey. In Colorado, 501 sites were found to be known or suspected of making, using or discharging PFAS. For further comment on the history of PFAS and PFOS in Colorado please see Paradise Polluted under Pollution and Waste at Environment at 5280. To briefly summarize, Colorado has had various incidents of ‘forever chemicals’ entering water supplies. The largest contamination linked to fire-fighting foam, occurred in 2016, which forced a shutdown of drinking water in three communities. This also led to strengthened EPA health advisory level in small communities, and resulted in a multi-million dollar cleanup cost with construction of new water treatment plants to decontaminate the water supply.
Congress has failed to implement a comprehensive legislation of safe levels of PFA’s for States to adhere to, which prompted states to implement their own legislation. For example, the Colorado Legislature in 2021 granted increased authority to the CDPHE along with $8 million in funds to identify and address: contaminated sites, removal of hazardous firefighting foam, and improved drinking water systems, to help communities with tainted water. The propensity of the threat to human health, and threat to environmental resources triggered the EPA’s action to propose a rule to develop a federal standard to address the national concern of PFAS contamination. Many eyes will be waiting on the ramifications of the EPA’s proposed rule, which will be officially release for public inspection sometime in 2023 in the Federal Register.