EPA Proposes to Designate “Forever Chemicals” as Hazardous Substances
EPA has proposed to designate two polyfluoroalkyl substances (PFAS) as hazardous substances under CERCLA, also known as the Superfund law. Perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, have been identified by EPA as substances which, when released into the environment, may present substantial danger to public health, welfare or the environment. The proposed designation of these chemicals as hazardous substances would trigger immediate reporting requirements for releases over 1 pound, as well as require investigation and cleanup of releases of PFOA and PFOS to the environment.
What are PFOA and PFOS?
These chemicals are prolific in consumer products such as stain-resistant carpeting and upholstery; water/stain/dirt repellent clothing; paper and cardboard packaging for food that is water or grease resistant; non-stick cookware; dental floss; cosmetics; and firefighting foams. They have been found in food, drinking water, blood, breast milk, and organ tissues. In the environment, PFOA and PFOS are prolific in rivers, lakes, streams, groundwater, surface and subsurface soils, as well as in snow, ice and air. PFOA and PFOS are very stable in the environment and in body systems, and do not tend to degrade, which is why they have been nicknamed “forever chemicals.” EPA has identified that exposure to PFOA and/or PFOS can cause adverse health effects including cancer, low birth weight, as well as reproductive, cardiovascular, liver, kidney and immunological effects in humans and animals.
Who is Affected by This Rulemaking?
- Manufacturers and importers of PFOA and/or PFOS
- Processors of PFOA and/or PFOS
- Manufacturers of products containing PFOA and/or PFOS
- Downstream product manufacturers and users of PFOA and/or PFOS products
- Waste management and wastewater treatment facilities
EPA has identified several industrial categories that are potentially affected. The non-inclusive list names aviation operations; carpet manufacturers; car washes; chemical manufacturing; chrome electroplating, anodizing, and etching services; coatings, paints and varnish manufacturers; firefighting foam manufacturers; landfills; medical devices; municipal fire departments and firefighting training centers; paper mills; pesticides and insecticides; petroleum and coal product manufacturing; petroleum refineries and terminals; photographic film manufacturers; polish, wax, and cleaning product manufacturers; polymer manufactures; printing facilities where inks are used in photolithography; textile mills; waste management and remediation services; and wastewater treatment plants.
How Will This Rulemaking Affect My Business?
If the rulemaking is adopted, any person in charge of a vessel or facility must report releases of PFOA and PFOS of one pound or more within 24-hours of the release; and submit follow-up notifications and reports.
EPA and state agencies could require potentially responsible parties to investigate and clean up PFOA and PFOS releases that pose an imminent and substantial endangerment to public health or welfare or the environment. EPA may conduct a response action if there is a release or threatened release of PFOA or PFOS without having to establish imminent and substantial danger and can then recover costs from potentially responsible parties. This rulemaking could also affect ongoing cleanups where other hazardous substances have already been identified and investigated, by requiring an investigation for PFOA and PFOS, potentially lengthening the investigation and remediation process, and increasing costs. In addition, the rulemaking could have an effect of re-opening closed superfund sites based on re-evaluation of data, or the collection of new data, showing the existence of PFOA or PFOS at these sites. Potentially responsible parties could once again be on the hook for a cleanup which they presumed was concluded.
What Actions Should I Take?
The most important thing to do is to understand what chemicals your operation uses, stores or disposes, which may require detailed conversations with suppliers of materials. Be sure to properly maintain safety data sheet (SDS) databases in compliance with the Emergency Planning and Community Right-To-Know Act (EPCRA), so they can be reviewed for chemicals which are subject to reporting if there is a release. Municipalities with firefighting capabilities should review firefighting foams to determine whether they contain PFOA or PFOS, as using them to extinguish a fire could constitute a release under CERCLA, triggering liability for cleanup. Likewise, municipalities with wastewater treatment facilities should ensure they are testing treated effluent for the presence of PFOA and PFOS to ensure they are not releasing these chemicals into the environment.
When purchasing or leasing commercial or industrial property, the purchaser should conduct a Phase I Environmental Site Assessment to identify potential risks for PFOA or PFOS contamination, because under CERCLA, liability attaches to ownership of contaminated property.
EPA announced it also anticipates designating other PFAS as CERCLA hazardous substances, therefore it is important to understand whether any of these chemicals are contained in products that your company uses or produces, in order to be properly handled or phased out.
Finally, affected businesses are urged to submit public comment on the proposed rulemaking. Comments must be submitted in writing on or before November 7, 2022 with reference to Docket ID No. EPA-HQ-OLEM-2019-0341 at https://www.regulations.gov.
Click here for a link to the proposed rule.
If you have questions about your compliance with environmental regulations, or need assistance drafting public comment, please contact Jordan Ramis at (888) 598 7070.