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Superfund PFAS Plan Seen as Start to Cleanups in Neglected Areas

Aug. 31, 2022, 9:30 AMUpdated: Sept. 16, 2022, 7:32 PM

The Environmental Protection Agency’s proposal to deem two “forever chemicals” as hazardous substances would ultimately provide a powerful tool to help disadvantaged communities get contaminated sites cleaned up, but advocates worry it will be years before the new authority brings results.

If finalized, the agency’s plan would apply the Superfund law’s bedrock “polluter pays” principle to EPA and state agency cleanups of the two most studied forms of PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Under that principle, parties deemed responsible for hazardous substances—including past owners—can be held liable for cleanup costs.

Environmental justice groups said EPA’s proposal last week is a step toward making good on the Biden administration’s pledge to jump start long-delayed action, particularly for poorer frontline communities near sites contaminated with PFOS and PFOA—including airports, plastics and resin makers, and multiple Defense Department sites.

The proposal, however, is limited to just two of thousands of the forever chemicals. And it could take years for EPA to finalize and implement the proposal, environmental justice advocates say.

“It’s good news. But it is not viewed as the silver bullet that’s going to solve everybody’s problems,” said Tony Spaniola, who co-chairs the Great Lakes PFAS Action Network, which has pushed for more funding and more equitable cleanups in Michigan and neighboring states. “This is viewed widely as a major step in the right direction, and you have to start someplace, because quite frankly the past EPA and federal response overall has been pretty lousy,” he said.

Industry attorneys worry that that Superfund PFOA and PFAS cleanups could slow cleanups of other contaminants also impacting environmental justice communities. Other industries—from water utilities to landfills—argue that under the proposal they would be held responsible for cleanups even though they didn’t make or use the chemicals.

Benefits Could Take Years

Dubbed “forever chemicals” because some remain in humans for years and in the environment indefinitely, PFOA and PFOS have been linked to certain cancers, increased cholesterol, heart problems, and weakened immune systems.

If finalized, the rules would be EPA’s first use of the Comprehensive Environmental Response, Compensation, and Liability Act—or Superfund law—to designate chemicals as hazardous in the 40-plus years since its passage.

But it could be years before marginalized and other communities see benefits. The EPA estimates it needs at least a year to make the rule final. Implementation could be delayed well beyond that if it is challenged in court.

“The agency is showing its commitment, that it intends to do everything they can under the law,” said Sonya Lunder, the Sierra Club’s senior toxics policy adviser. But it is hamstrung by “inadequate and burdensome” chemical and hazardous waste laws, she said, and is struggling to meet many of its self-imposed deadlines under a broad PFAS roadmap the agency released in October 2021, including addressing PFAS contamination of drinking water.

Progress is “incredibly burdensome, and it’s incredibly slow, and it’s incredibly incremental,” Lunder said.

EPA also needs to ensure that its final rule doesn’t mean cleanups of the PFAS chemicals come at the expense of low-income areas and communities of color already bearing the brunt of pollution, Lunder said. The final version must “ensure PFAS waste is not transferred to marginalized communities who live near incinerators, landfills and injection wells,” where PFAS waste can be stored.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The hazardous designation would remove several barriers to getting sites cleaned up near marginalized communities by putting more of themon EPA’s National Priorities List. The list has more than 1,300 sites, but Superfund is in line for a big boost in funding, including $3.5 billion for cleanups from the 2021 infrastructure package.

The list is important because EPA can only take remedial actions on its own—though it can seek to recover its costs from polluters—if the cleanup site is on its NPL list.

Elevating PFOS and PFOA cleanups also could have some unintended consequences, said Peter Wright, who oversaw the program as former assistant administrator for EPA’s Office of Land and Emergency Management.

“There’s a possibility that PFAS will compete with other contamination” for agency attention and funding, he said. Those cleanups could be slowed if other already cleaned up sites are reopened for PFOS and PFOA removal, he said.

“For example, there are still many communities, many of them environmental justice communities, that suffer from excessive lead contamination,” said Wright, now a partner at Barnes & Thornburg LLP. “It’s not going to help get those communities cleaned up any faster by adding a whole new set of potential sites or by reopening” old ones, he said.

Preventing PFAS Dumping Grounds

It’s unclear how far the agency will go in aggressively using the Superfund law to specifically help disadvantaged communities.

But designating them as hazardous under CERCLA should translate into broader remediation of sites to include PFAS chemicals, while shifting the burden of cleanup costs to polluters—and away from taxpayers, including those in “harmed communities,” said Emily Donovan, co-founder of the North Carolina-based Clean Cape Fear, a group that is pushing for cleanup of contaminated water supplies fed by the Cape Fear River.

The EPA under a 1994 environmental justice executive order is supposed to weigh whether environmental rules would disproportionately impact low-income populations, communities of color, and indigenous peoples. But it has yet to make that determination in its proposal to deem the PFAS chemicals as hazardous under CERCLA.

“The EPA is unable to determine if this action does or does not have disproportionately high and adverse human health or environmental effects” on such disadvantaged populations, the agency said in its proposed rule.

But EPA listed several areas where low-income and other disadvantaged populations are more likely to suffer from exposures, such as near large airports where PFAS-based foam has long been stored and used for fire suppression, and near plastics and resin manufacturing sites.

Those same environmental justice concerns are more limited for smaller airports, where the surrounding communities generally tend to be wealthier, the agency said.

Some Defense Department sites facing pressure for PFAS-related cleanups are neighbored by “populations with higher concentrations of minority and low-income residents,” but the majority are not, EPA said in its proposal.

Beyond the agency’s proposal to deem two PFAS chemicals hazardous under the Superfund law, the EPA is also teeing up a second broader PFAS regulation under the Superfund law to address other PFAS chemicals. The agency reiterated its commitment to the second rulemaking in its proposal unveiled Aug. 26.

The EPA this fall plans an advance notice of proposed rulemaking “seeking comments and data to assist in the development of potential future” regulations addressing other PFAS chemicals under the Superfund law, according to Friday’s proposed rule.

But that is essentially a pre-rule stage, which puts off a proposed rule at least to 2023—and a final version well beyond that.

(Adds link to proposed EPA rule )

To contact the reporter on this story: Dean Scott in Washington at dscott@bloombergindustry.com

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