Chemicals, Regulatory Developments

Bipartisan Support for Faster CERCLA Designation for PFAS

In its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan, released in February 2019, the EPA noted that in 2018, it initiated the regulatory development process for listing the two most problematic PFAS—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).

Drinking water

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The designation would either empower the Agency to require that parties responsible for PFAS contamination undertake cleanup or release federal funding to the Agency to pay for cleanups when responsible parties either no longer exist or are incapable of remediation. The Agency added that its effort to list PFOA and PFOS under CERCLA is “ongoing,” and no specific timetable for finalizing that action was provided.

It is undisputed that PFAS are in the bodies of almost every American and that PFAS almost certainly have adverse effects on human health (e.g., low infant birth weights, effects on the immune system, and cancer for PFOA and thyroid hormone disruption for PFOS). Currently, the EPA is aware of 17 nonfederal sites nationwide with PFAS contamination. PFAS are also believed to be present in drinking water supplies near over 30 federal facilities, mainly military installations. Given the level of risks at all these sites, members of Congress are asserting that the EPA is unjustifiably delaying a CERLA hazardous substance designation for PFASs and have introduced bipartisan bills to accelerate the process.

Thousands of Chemicals

PFAS have been manufactured and extensively used worldwide for nearly 80 years. The chemical class includes an extraordinary number of substances; estimates range from 3,500 to over 5,000. As is often the case with certain chemicals, qualities of PFAS, such as stability and resistance to heat, water, and oil, that make it useful in products and formulations also cause it to persist in the environment and in the human body. Certain PFAS chemicals are no longer manufactured in the United States as a result of voluntary phaseouts by manufacturers. However, there are still many PFAS compounds in use, and many compounds still produced internationally can be imported into the United States in consumer goods such as carpets, leather and apparel, textiles, paper and packaging, coatings, rubber, and plastics.

Identical Language

Two identical bills were introduced in both the House and Senate. The bills state: “Not later than 1 year after the date of enactment of this Act, the Administrator of the Environmental Protection Agency shall designate all per- and polyfluoroalkyl substances as hazardous substances under section 102(a) 5 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.”

Both bills have bipartisan support.

Michigan Lawmakers

The House bill was introduced January 14, 2019, by Reps. Debbie Dingell (R-MI), Fred Upton (R-MI), and Dan Kildee (D-MI). A former paper mill in Parchment, Michigan, is believed to have contaminated the local source of drinking water and is one of the nation’s better known PFAS-contamination sites.

“PFAS contamination represents a clear and present danger to Michigan families,” said Upton. “And, as Parchment made crystal clear, we need an all-hands-on-deck effort to protect both human health and our environment. This bipartisan legislation will ensure we’re treating PFAS as a hazardous chemical and giving our agencies the resources to clean up sites for the betterment of our communities.”

“Michigan has been hit hard by PFAS,” said Dingell. “It’s clear it’s a threat to human health and our environment. It’s been found in our drinking water, air, food, and consumer products. Our bipartisan legislation will list all PFAS as the hazardous chemicals we know they are and give the EPA the tools it needs to clean up contaminated sites.”

Colorado Lawmakers

Following the release of the EPA’s Action Plan, the Senate bill was introduced on March 1, 2019, by two lawmakers from Colorado: Democrat Michael Bennet and Republican Cory Gardner. “The [EPA’s Action Plan] included another commitment by EPA to make that designation for PFOA and PFOS, but did not identify the available statutory mechanism it would use, nor how long the designation process would take to complete,” said the senators.

“It is inexcusable that the Trump administration continues to delay action to address PFAS contamination across the country,” Bennet said. “This bipartisan bill will ensure contaminated sites are cleaned up and resources are available to communities in Colorado so they have access to safe drinking water. Passing this measure is one of many steps we must take to address this public health threat with the urgency it requires.”

“This bipartisan legislation will allow EPA to pursue polluters responsible for PFAS contamination and provide the communities remediation options through Superfund,” Gardner said. “PFAS contamination is a serious issue facing our communities and we need to act quickly to address this challenge.”

Tests have shown that PFAS levels in drinking water for communities near several military installations in Colorado are many times higher than the nonenforceable 70 parts per trillion “health advisory level” for PFOA and PFOS the EPA published in November 2016.  The military formerly used firefighting foams that contained PFAS.

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