After years of failed attempts to rein in PFAS contamination through federal legislation, the Biden administration has proposed designating two “forever chemicals,” PFOA and PFOS, as hazardous substances under the nation’s Superfund law.
The designation would help track the use of the chemicals and their spread and would also force the companies that use them to be responsible for their cleanup.
But those companies argue that the Biden approach is the wrong legal tool to use for the cleanup and that the designation would be too costly and lead to unforeseen consequences.
PFAS chemicals have been used since the 1940s to make products resistant to heat, water, grease and stains. They are more commonly known by their name brands, like Teflon, Gore-Tex and Scotchgard.
After decades of almost unregulated use, the man-made chemicals can now be found almost everywhere in the environment, from the soil used to grow crops for human and animal consumption to rainfall in the Arctic Ocean.
The chemicals can also be found in the bloodstreams of about 95% of Americans, where it stays for about five years.
Thousands of PFAS chemicals exist, but only a few, like PFOA and PFOS, have been thoroughly studied. Use of and exposure to those chemicals have been linked to an increased risk of kidney or testicular cancer, liver damage, increased cholesterol levels, decreased vaccine response in children, increased risk of high blood pressure or pre-eclampsia in pregnant women, decrease in birth weight and other health problems.
The health problems associated with PFAS chemicals are creating a $63 billion-a-year economic burden for Americans, including medical bills and reduced worker productivity across a lifetime.
The U.S. Environmental Protection Agency is charged with carrying out the Superfund law, officially called the Comprehensive Environmental Response, Compensation and Liability Act of 1980. EPA administrator Michael Regan said the designation is based on significant evidence that PFOA and PFOS “may present a substantial danger to human health or welfare and the environment.”
“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 Regan. “Under this proposed rule, EPA will both help protect communities from PFAS pollution and seek to hold polluters accountable for their actions.”
Environmental groups like Sierra Club and Earthjustice welcomed the proposal, saying it would help hold polluters accountable for decades of pollution.
The companies that use PFAS products and the trade organizations that represent them opposed the proposal, saying the designation would result in cleanups too expensive for companies to afford and cause ripple effects throughout the industries that support them.
The variety of industries opposed to the rule gives a clue about the extent of PFAS use in the U.S.
National trade organizations, like the U.S. Chamber of Commerce, National Mining Association, American Chemistry Council and the American Petroleum Institute, are joined by the International Carwash Association, the American Farm Bureau Federation, the International Association of Fire Chiefs and other groups in opposition to the proposal, mainly citing the direct and indirect costs of carrying out the cleanups.
A study sponsored by the U.S. Chamber of Commerce found PFOA/PFOS Superfund sites could cost companies between $700 million and $800 million a year.
The Indiana Chamber of Commerce and 20 other commerce organizations have asked for the proposal to be withdrawn, citing, among other things, potential liability.
“A designation would also unleash massive potential liability for a host of public and private entities under CERCLA’s joint and several liability scheme. This may significantly delay real estate transactions by private companies, in particular potential investments into brownfield sites with the goal of remediating the property for reuse,” the organizations wrote in comments to the EPA.
Local governments and organizations representing state and local utilities also oppose the proposed designation.
The City of Columbus, American Water Works Association, American Public Works Association, Association of State Drinking Water Administrators and others argue that the sources of the PFAS should be responsible for the cleanup.
“[W]e strongly recommend that public works facilities that abided by best practices for treatment and disposal should not be held liable for something they did not create, and the proposed standards not inadvertently place an unjust legal burden on water systems and the communities which they serve,” the APWA wrote in comments to the EPA.
Purdue University warned that the proposal could negatively affect research on the chemicals.
Researchers at Purdue are currently performing PFAS research for the EPA with grants totaling $3.8 million. The university’s hazardous materials manager, Robin Mills Ridgway, said a hazardous substance designation for PFAS chemicals could increase costs for disposing of the chemicals properly, draining the funds allotted to scientists for their research.
“The designation of PFAS as a hazardous substance under CERCLA could have the collateral impact of making companies that currently offer final disposal of PFAS wastes from research unwilling to manage PFAS wastes in the future due to fear of liability. This could have a severely detrimental effect on the progress of research by essentially disallowing product of PFAS containing research wastes,” Ridgway wrote in comments to the EPA.
Jennifer Freeman, professor of toxicology at Purdue University’s School of Health Sciences, said the designation could also open up additional funding resources through the Superfund program that could help study, monitor and remediate PFAS contamination.
The EPA plans to finalize the proposal in 2023.