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Superfund designation for PFAS raises concern over liability

'Forever chemicals' have been deemed harmful to human health

EPA Administrator Michael Regan said designating these chemicals under Superfund authority will expedite cleanups.
EPA Administrator Michael Regan said designating these chemicals under Superfund authority will expedite cleanups. (Tom Williams/CQ Roll Call file photo)

The EPA issued a final rule on Friday that will list the two most widely used forms of PFAS chemicals under the law governing Superfund sites, spurring worries in Congress over the liability for industries that merely received products that contained them.

The agency’s final rule designates perfluorooctanoic acid, or PFOA, and perfluorooctane sulfonic acid, or PFOS, under the 1980 law that set up the Superfund. Both are forms of PFAS, human-made substances known as forever chemicals because they do not easily degrade in the environment.

Businesses, airports, federal agencies, manufacturers and many others have used products with these chemicals for years. Now, they’ll have to report releases — such as spills or dumping — of one pound or more within a 24-hour period to the EPA.

“Designating these chemicals under our Superfund authority will allow EPA to address more contaminated sites, take earlier action, and expedite cleanups, all while ensuring polluters pay for the costs to clean up pollution threatening the health of communities,” EPA Administrator Michael S. Regan said in a statement.

Neither PFOS or PFOA are manufactured in the U.S. any more, but remain widespread in the soil and water.

The move was celebrated by public health and environmental advocates who have pushed for stricter regulation of the chemicals that are linked to adverse health outcomes, including certain forms of cancer, as well as impacts to the liver, heart and endocrine system.

Last week the EPA finalized regulations under a 1974 law on drinking water for six forms of PFAS, an abbreviation for perfluoroalkyl and polyfluoroalkyl substances.

The agency said that the designation will allow it to pursue parties responsible for significant contamination and require them to cover all cleanup costs. It issued a memorandum outlining how it will exercise enforcement discretion, saying it will “focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment.”

The agency said it won’t seek response actions or costs under the 1980 law from passive receivers of PFOS and PFOA, which would include water and waste utilities, airports, farmers and fire departments.

These entities say, however, that even with the EPA’s promised enforcement discretion they may be exposed to lawsuits and ultimately held responsible for cleanup costs, despite often being required under other laws to receive these chemicals.

That has prompted some lawmakers to call for action.

Senate Environment and Public Works ranking member Shelley Moore Capito, R-W.Va., said the EPA’s rule “puts local communities and ratepayers on the hook for PFAS contamination they had nothing to do with in the first place.”

“Today’s ill-advised decision underscores the urgent need for Congress to act. We must pass legislation to safeguard American ratepayers from the financial burden imposed by this misguided rule,” Capito said in a statement.

Capito and others have argued it is necessary to amend the 1980 law to ensure those who received but did not manufacture PFAS cannot be held liable under the law.

Sen. Cynthia Lummis, R-Wyo., has introduced a series of bills that have the support of these industries, including one for water and wastewater utilities. A similar bill was introduced in the House last week by Reps. John Curtis, R-Utah, and Marie Gluesenkamp Perez, D-Wash.

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