By: Lindsay Bates
Per- and polyfluoroalkyl substances (“PFAS”) are long-lasting, synthetic [HT1] chemicals.[i] PFAS are called “forever chemicals” because they are comprised of carbon-fluorine chains, which are among the strongest chemical bonds in nature.[ii] Consequently, once PFAS are deposited within soil and water, they are extremely resistant to degradation.[iii] PFAS include more than 12,000 chemicals used in everyday products such as food wrappers, non-stick pans, and cleaning agents that are resistant to water, grease, and stains.[iv] Consumption of PFAS has been linked to kidney, testicular, and ovarian cancer, as well as damage to the liver and thyroid.[v]
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, was enacted in 1980 and was designed to mitigate hazardous waste sites.[HT2] [vi] CERCLA’s main purpose is to regulate the response to hazardous substances, as well as contaminants and pollutants, by creating a program for cleanup and remediation.[vii] CERCLA allows the Environmental Protection Agency (EPA) to clean contaminated sites and hold accountable those who are responsible for the contamination.[viii] CERCLA was later amended by the Superfund Amendments and Reauthorization Act in 1986.[ix] These amendments stressed the importance of efficiency, emphasized state involvement in cleanup efforts, and encouraged citizens to comment on clean-up site action plans.[x] [HT3]
The EPA has proposed a rule, which would designate two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under CERCLA.[xi] These two chemicals are currently listed only as pollutants and contaminants, which have a less significant response protocol.[xii] By classifying PFOA and PFOS as hazardous substances, the proposed rule would increase transparency by requiring entities to report releases of PFOA and PFOS that meet or exceed the reportable quantity.[xiii] This rule comes to the forefront as evidence shows that these two chemicals may present a danger to human and environmental health.[xiv]
CERCLA currently confers discretion to the EPA in responding to hazardous substances, pollutants, and contaminants in order to protect public health and the environment.[xv] With respect to hazardous substances, the EPA can conduct response actions if there is a release or a threatened release without having to establish an imminent and substantial danger.[xvi] Classifying PFOA and PFOS as hazardous substances opens a new avenue for mitigating environmental damage from the release of these substances. A hazardous substance listing would progress the timeline of cleanups to ensure that affected communities are quickly afforded relief.[xvii] Further, the proposed rule could influence states who do not have PFAS laws in place to create a first line of defense against forever chemical contamination.
The EPA has the legal authority to promulgate this interpretive rule because CERCLA does not define imminent danger for designating hazardous substances.[xviii] The statutory language indicates that the EPA is authorized to list hazardous substances when “such elements, compounds, mixtures, solutions, and substances, which, when released into the environment, may present substantial danger to the public health or welfare.”[xix] Therefore, the EPA proposes to interpret “may present” to mean that there is no requirement that the substance present an imminent substantial danger or require proof of actual harm.[xx] Using this interpretation, the EPA permissibly considers information including the potential harm to humans or the environment from exposure and how the substance degrades in the environment.[xxi] Considering degradation is essential to upholding CERCLA’s purpose of promoting response and remediation, especially as information continues to evolve on the longevity of PFAS.
Listing PFAS as a hazardous substance is the first of many steps in the right direction. Without established rules from the EPA, states are struggling to regulate the public health hazard of forever chemicals, which are wreaking havoc on water and air supply.[xxii] Federal guidance on the issue at hand could be the solution that trickles down to create a change in our own backyard.
[i] PFAS Explained, Env’t. Prot. Agency (Apr. 28, 2022), https://www.epa.gov/pfas/pfas-explained [https://perma.cc/QV2B-HAGE].
[ii] Ryan Van Velzer, Forever chemicals threaten drinking water across Kentucky, WFPL (June 15, 2022), https://wfpl.org/forever-chemicals-threaten-drinking-water-across-kentucky/ [https://perma.cc/WQT4-M2JA].
[iii] Id.
[iv] Id.
[v] Id.
[vi] Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): Overview, Pace L. Libr. Rsch. Guide (June 30, 2022, 2:58 PM), https://libraryguides.law.pace.edu/CERCLA#:~:text=CERCLA%20was%20intended%20to%20aaddres,fund%20for%20cleanup%20and%20remediation. [https://perma.cc/8U3B-XSMH].
[vii] Superfund: CERCLA Overview, Env’t. Prot. Agency (Feb. 14, 2022), https://www.epa.gov/superfund/superfund-cercla-overview [https://perma.cc/GH2H-W4RN].
[viii] Id.
[ix] Id.
[x] Env’t Prot. Agency, Superfund Amendments and Reauthorization Act (SARA), Env’t. Prot. Agency (Apr. 25, 2022), https://www.epa.gov/superfund/superfund-amendments-and-reauthorization-act-sara. [https://perma.cc/878E-HFZT].
[xi] Proposed Designation of PFOA and PFOS as CERCLA Hazardous Substances, Env’t. Prot. Agency (Sept. 8, 2022), https://www.epa.gov/superfund/proposed-designation-perfluorooctanoic-acid-pfoa-and-perfluorooctanesulfonic-acid-pfos [https://perma.cc/K79K-29GN].
[xii] Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 87 Fed. Reg. 54415, 54420 (Sept. 6, 2022) (to be codified at 40 C.F.R. pt. 302).
[xiii] Proposed Designation of PFOA and PFOS as CERCLA Hazardous Substances, supra note xi.
[xiv] Id.
[xv] Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 87 Fed. Reg. at 54420.
[xvi] Id.
[xvii] Id.
[xviii] Id. at 54421.
[xix] Id. at 54420-21.
[xx] Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 87 Fed. Reg. at 54421.
[xxi] Id.
[xxii] E.g., Kristen Hildreth & Shelly Oren, State and Federal Efforts to Address PFAS Contamination, Nat’l Conf. of State Legislatures (Mar. 19, 2021), https://www.ncsl.org/research/environment-and-natural-resources/state-and-federal-efforts-to-address-pfas-contamination.aspx [https://perma.cc/3G5U-D8QR].