The EPA’s plan to designate for the first time two “forever chemicals” as hazardous substances under the powerful Superfund law has sparked fears of runaway costs associated with cleaning up contaminated sites, attorneys say.
An Environmental Protection Agency proposal to designate PFOA and PFOS would be the first time the agency has wielded the Comprehensive Environmental Response, Compensation, and Liability Act, known as CERCLA or the Superfund law, to designate chemicals as hazardous in the 40-plus years since its passage.
The move would allow the EPA to apply the Superfund law’s bedrock “polluter pays” principle to cleanups, which means the EPA or state agencies could recover full costs or contributions from polluters.
The plan, stuck in a White House review since January, raises concerns a hazardous designation would trigger reopening some remediated sites if significant enough levels of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) remain. The regulations, if finalized, are expected to impose detailed reporting requirements and could disrupt ongoing litigation focused on settling responsibilities for cleanups, say attorneys tracking the issue.
“If you have new contaminant data and there’s reason to believe your site contains a compound that wasn’t previously listed, then, absolutely those can be reopened,” said Daniel Deeb, an attorney with Arent Fox Schiff LLP representing companies on CERCLA and other waste and cleanup litigation.
The EPA’s action seeks to tackle a small slice of the ubiquitous PFAS compounds, which have been widely used in everything from rockets to heart stents, firefighting foam, and nonstick cookware since the 1940s. PFOA and PFOS were among the most widely used PFAS chemicals, and were selected by the EPA because there is ample research available on both. In recent decades they largely have been replaced by other variations of the huge per- and polyfluoroalkyl substances, or PFAS, family of chemicals.
Cancer, heart problems, and weakened immune systems are among the health issues associated with the substances, often dubbed “forever chemicals” because some remain in the environment indefinitely and in humans for years.
A hazard designation under CERCLA would give the EPA a new tool to force facilities around the nation to report on PFOA and PFOS releases that meet or exceed certain thresholds, helping to further focus where the agency puts its attention toward cleanups. EPA argues that designating the compounds hazardous is key to increasing its awareness of the location and size of the challenge of PFOS and PFOA releases.
Timing in Doubt
EPA planned to publish the proposal sometime this month, to be followed with a final rule in summer 2023. That timeline is looking increasingly ambitious as the Office of Management and Budget continues meetings over some of the thornier concerns over the rulemaking.
An EPA spokeswoman declined to comment on how soon the agency might unveil its proposal, a timeline that is largely in the hands of reviewers at OMB.
Since the proposal was sent for White House review in January, OMB has held 10 formal meetings with industries spanning airports and aviation, oil and gas, chemical manufacturing, and waste handling and recycling who highlighted unintended consequences, as well as with environmental advocates who support the EPA’s move.
How EPA proceeds with the CERCLA hazardous designation could upend legal strategies and even ongoing litigation over waste site cleanups, according to several attorneys, particularly for sites where remediation is already underway that doesn’t seek to clean up PFOS and PFOA.
But the EPA is on firm legal footing in wielding the Superfund law to deem certain PFAS chemicals as hazardous, even if it hasn’t done so until now, said Peter Wright, who led the agency’s Superfund program during the Trump administration.
Drain on Cleanup Funding
For decades chemicals have been deemed a CERCLA hazardous substance for the purposes of cleanups if determined to be a hazardous air pollutant or otherwise hazardous, said Wright, an attorney with Barnes & Thornburg LLP.
“EPA has never used its authority to uniquely designate a CERCLA hazardous substance,” he said. “It has not had the occasion to use that authority, but it does have that authority.”
Some worry that EPA’s pursuit of the PFOS and PFOA hazardous waste designation could increase Superfund cleanup costs just as the program is getting more funding for cleanups that advocates have pursued for decades. The bipartisan infrastructure package provides $3.5 billion over five years for Superfund cleanups, on top of increases Biden has won via the annual appropriations process.
But that funding might not go as far as hoped if the agency’s PFOS and PFOA designations drive up remediation costs, said Lisa Rushton, a partner with Womble Bond Dickinson who works on solid and hazardous waste management and cleanup issues.
“Yes, we’re going to have more money there, but the costs of the remediation are exponentially larger” for extensive PFOA and PFOS cleanups, she said.
“When you just have, say, soil remediation, maybe you’re talking hundreds of thousands” of dollars, or groundwater remediation at a cost of millions, she said. But with any PFAS remediation, those costs could be exponentially higher, perhaps $10 million or even $100 million depending on the complexity, Rushton said.
The EPA in some cases has already begun requiring “at the very least investigations and sometimes remediation” of sites showing some level of contamination with the forever chemicals, Deeb said.
The National Association of Clean Water Agencies, representing wastewater treatment agencies, has met with OMB to warn that such facilities could be on the hook for treatment and disposal of the material—utility costs that would likely be passed onto ratepayers. It has pressed House and Senate committee leaders to pass legislation to shield the water agencies from liability from EPA’s pending regulation, arguing that they played no role in producing the chemicals.
The clean water group reiterated those concerns at a June 13 meeting with OMB, including how the CERCLA designation would impact the handling of biosolids—the natural byproduct of sewage treatment often beneficially reused in fertilizers, said Amanda Aspatore, NACWA’s general counsel.
EPA is eyeing broader PFAS regulation under the Superfund law down the road. It plans to start with the earliest stage in developing federal regulations, an advance notice of proposed rulemaking slated for publication in November, to get input on designating other PFAS chemicals or even broad classes of PFAS as hazardous under CERCLA.
“The trend here is certainly for further regulation, and I would be very surprised if we’re not just seeing the tip of the iceberg now,” Deeb said.
To see the latest updates on state-level PFAS regulations and legislation, check out Bloomberg Law’s PFAS State Activity Tracker here.
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