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Cleanup Liability Among Concerns About EPA’s Hazardous PFAS Plan

Nov. 17, 2022, 10:30 AM

The EPA is vowing to move quickly to designate two “forever chemicals” as hazardous substances under the Superfund law, but has to balance the Biden administration’s desire to better protect disadvantaged communities with public and private sector fears they’ll be held liable for a problem not of their own making.

The Environmental Protection Agency proposed in September to designate two per- and polyfluoroalkyl substances, or PFAS, as hazardous substances under the Superfund law, which backers say would give the agency and states new tools to speed cleanups of sites contaminated with the forever chemicals.

If finalized, the EPA’s proposal would mark its first use of the Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund law, to directly list chemicals as hazardous substances and subject them to the law’s strict liability provisions. The plan, to be finalized in 2023, would designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—the two most well-known and studied examples of PFAS—as hazardous substances.

As the comment deadline on the EPA proposal closed last week, advocacy groups pressed the agency to move ahead quickly. Those community and environmental justice groups say they’re finally starting to see action from an administration to address inequities from pollution—including disproportionate exposures to PFOS and PFOA—on low-income, tribal areas, and communities of color.

But the agency also faces significant opposition from water utilities, farm groups, airports and many local governments, who argue the plan would put them in the crosshairs for lawsuits and lead to huge cleanup bills for a problem they didn’t create. EPA’s plan could even end up harming low-income and other disadvantaged communities, some opponents say, saddling those who can least afford it with higher water and waste utility bills.

In navigating those issues, the EPA has to consider the regulation will almost certainly face court challenges. Plenty of practical and technological hurdles also remain for safe disposal of PFAS compounds—and worries that few proven technologies available to destroy them.

Equity Issue

The New York-based WE ACT for Environmental Justice said PFAS contamination “is an equity issue that plagues low-income communities and/or communities of color” at increased risk given they’re more likely to live near industrial sites, wastewater treatment plants, and military sites.

Other overlooked exposures include PFAS present in fast food packaging, given fast food chains “actively and persistently market their products in Black and Hispanic neighborhoods,” they wrote.

Also among the hundreds of comments on EPA’s proposal before the Nov. 7 deadline is a petition from nearly 1,000 North Carolina residents urging it to swiftly finalize the regulations.

State residents “have suffered far too long from the health impacts from dangerous PFAS chemicals,” they wrote. Designating the two PFAS chemicals hazardous “will jumpstart the process of identifying and cleaning up PFAS-polluted sites.”

It also would send a “strong signal to manufacturers to stop using and discharging other members of this family of toxic forever chemicals” for fear EPA could next focus on their PFAS chemicals, according to the petition, submitted by the North Carolina Conservation Network.

Shifting Liability

The EPA’s proposal has triggered concerns from water treatment facilities. Instead of the “polluter pays” principle enshrined in the Superfund law, the EPA would be opting for a “community pays” approach which “threatens to push significant costs and liabilities onto local communities,” the National Association of Clean Water Agencies (NACWA) wrote in comments to the agency.

That would put cleanup and costs on the backs of ratepayers, including disadvantaged communities disproportionately impacts by PFAS exposures, the NACWA wrote. Many water and wastewater treatment operations, along with their trade associations and local governments that run water systems, say the liability and cleanup costs should be borne by companies that manufactured and profited from the PFAS compounds.

“Public clean water agencies have never, and do not, produce or profit from PFAS chemicals,” said NACWA, which represents hundreds of wastewater and stormwater agencies.

They have few options to control such substances entering “public sewer and stormwater systems and the environment through industrial releases and, crucially, commercial and domestic sources as they wash off from household and commercial goods, clothing, and even our own bodies,” it said.

One solution water agencies have sought is an exemption from the regulations. But beyond enforcement discretion, the agency’s options may be limited as CERCLA exemptions are few, and many attorneys argue exemptions would require congressional action.

Many US industries expressed similar fears they could be held liable for cleanups even though they didn’t manufacture or sell PFAS-contaminated products. The PFAS Regulatory Coalition—representing electric utilities, iron and steel manufacturers, muncipalities, and other groups that don’t make the chemicals—said the EPA did “an incomplete and faulty analysis” that significantly underestimated costs and urged it to withdraw the rule.

The EPA designated the rulemaking as a “significant regulatory action,” triggering review by the White House Office of Management and Budget and offered a basic economic assessment. But in its proposal, the EPA said it’s “not considering costs” because the Superfund law “precludes EPA from taking costs into account in the designation of a hazardous substance.”

Industry groups argue that EPA’s estimates, such as $370,000 annually for enhanced reporting PFOS and PFOA releases—dramatically underestimate costs. A June US Chamber of Commerce study estimated private sector cleanup costs could run between $700 million to $800 million a year, or between $11 billion and $22 billion total.

That doesn’t account for other costs incurred by federal agencies owning and operating contaminated sites, municipalities that operate community water and wastewater systems and landfills, and state and locally managed brownfield industrial sites, the study said.

Wastewater utilities and farm groups across the US also raised concerns about the PFOA and PFOS that can be in biosolids spread on farms and other properties as a nutrient.

Local, State Impacts

Those industry cost estimates are well above the $100 million cost requiring agencies do a full regulatory impact analysis, the PFAS Regulatory Coalition said.

A cost estimate above that threshold would require EPA to assess unfunded mandates the regulations would impose on state and local governments, and render them vulnerable to being scrapped by Congress under the Congressional Review Act, which applies to “major” rules above that annual threshold.

The lack of detailed cost analyses has led big local government organizations—the U.S. Conference of Mayors, National League of Cities, and National Association of Counties—to urge EPA to withdraw its proposal. The three groups argue the agency “is moving too fast and without firm knowledge” of the impacts on local governments and residents.

Some local governments worry they also would be an easy target for lawsuits under EPA’s proposal and say they need more than just agency assurances that counties and municipalities won’t be singled out. While the EPA has signaled “it does not intend to target local governments” by using enforcement discretion, it “has not clearly stated how” it will do so, wrote Harford County, Md., Public Works Director Joseph Siemek, who urged the EPA to withdrawal the rule.

But local and state governments aren’t all opposed to EPA’s plan.

New Mexico’s agriculture and environment secretaries wrote the CERCLA designation “is essential” for the state to pursue natural resource damage claims where sites have been contaminated with hazardous substances.

And it would give federal, state, and tribal governments authority to recover “all costs to restore or replace injured natural resources” to their original condition, they wrote.

To contact the reporters on this story: Dean Scott in Washington at dscott@bloombergindustry.com; Pat Rizzuto in Washington at prizzuto@bloombergindustry.com

To contact the editor responsible for this story: Zachary Sherwood at zsherwood@bloombergindustry.com