By Jose Aguayo.
On August 26, 2020, the USEPA released a proposed rule to regulate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or “Superfund.” These two chemicals are the most widely used ones from a family of chemicals called Perfluoroalkyl and Polyfluoroalkyl Substances, or PFAS. They have been used indiscriminately for decades in the aerospace, automotive, construction, electronics, clothing, and cooking ware industries. Given their wide usage and their chemistry, which makes them virtually indestructible by natural processes, PFAS widely spread and accumulate in the environment. Additionally, PFAS are strongly linked to health problems in humans, such as cancer and decreased immune response.
The proposal from the EPA looks to tackle the PFAS problem by, ideally, increasing transparency around the release of these harmful chemicals and by helping to hold polluters accountable for cleaning up their contamination. Although this sounds like an amazing move on paper, there are caveats that need to be monitored and potential pitfalls that need to be avoided at all costs.
Let’s start with the positives first – and there are quite a few. Firstly, PFOA and PFOS emissions over a certain threshold will trigger reporting requirements from the industries using these chemicals. The EPA will then be able to investigate and potentially require cleanup at sites contained by releases. Crucially, the EPA will be able to require the industries that released the PFOA and PFOS to pay for the cleanup. Many sites contaminated by PFOA and POFS are military installations that would hold the DOD responsible for the cleanup. Additionally, trash that contains a certain level of PFAS may be required to be disposed of in hazardous waste landfills. Currently, any number of consumer products, construction material, or other waste can freely go to municipal landfills where minimal controls mean these chemicals have a chance of leaching out into the surrounding communities.
Now, the bad news. Labeling these PFAS as hazardous chemicals means that thousands of sites suddenly become eligible to be added to the National Priorities List (NPL), or Superfund list. This list currently has 1,329 sites. With the addition of PFAS sites, this number would easily double if not triple. The current wait time for Superfund cleanup depends on many factors, but the size of the list is one of the main ones. As such, sites currently wait anywhere from a couple of years to more than a decade before cleanup commences. If the list is doubled or tripled, the cleanup times would easily follow suit. A community that has been waiting for cleanup for nearly a decade today, may get pushed further back and wait another decade before the contamination around them is removed.
The argument against this point is that most sites with PFOA and PFOS contamination are DOD installations, thus money would flow from this department. However, that is not guaranteed, and it will require constant pushing from the affected communities to ensure that the money comes in a timely manner. Since PFOA and PFOS have been phased out from many industries, finding responsible parties to pay for cleanup in non-DOD sites will most likely result in lengthy litigation battles that will only delay cleanup of contaminated sites even more.
Another potential pitfall is the disposal of PFAS containing materials. Although the proposed rule would make many PFAS waste go into hazardous waste landfills, a significant number will escape this requirement. The oil and gas industry is exempt from CERCLA, which means their byproducts are not required to follow CERCLA disposal guidelines. Waste from oil and gas drilling, especially fracking waste, contains large amounts of various PFAS, including PFOA and PFOS. This waste would escape regulation and be free to contaminate communities around non-hazardous waste landfills.
All in all, this move from the EPA is a very welcome step to combat PFAS pollution. However, there are several ways in which industries can avoid these implications, and even some ways that the designation can hurt existing communities. CHEJ is weary of these potential pitfalls and encourages the USEPA, as well as the environmental community, to ensure that they do not materialize as detriments to environmental justice communities.