With the Biden Administration’s release of the PFAS Roadmap in the fall of 2021, it seems to have set in motion more deliberate plans by the United States Environmental Protection Agency (EPA). These plans may have a substantial impact on the regulated community.
CERCLA
The Comprehensive Environmental Response Compensation and Liability Act (CERCLA), also known as Superfund, may be significantly driving work (again) in the coming years.
Concerns about PFAS have resulted in more environmental regulations some of which may affect your reporting this year (Image by Gerd Altmann from Pixabay).
On January 10, 2022, the EPA submitted a proposal to the White House Office of Management and Budget that will designate two PFAS compounds perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as CERCLA hazardous substances.
CERCLA Hazardous Substances Designation
Why is it significant if PFOA and PFOS are listed as CERCLA hazardous substances? “Once a chemical is listed as a ‘hazardous substance’ under CERCLA, the EPA has the authority to order responsible parties to cleanup sites contaminated with the designated chemicals, with the cost being born entirely by the responsible parties. Alternatively, the EPA can clean up the site on its own and then seek payment of the costs from responsible parties. Either way, the cleanup of so-called Superfund sites can be costly – anywhere from a few hundred thousand dollars for a small parcel of land to hundreds of millions of dollars” (National Law Review).
Landfills and Construction Industry
Should PFOA and PFOS get designated as hazardous substances, landfills having accepted a variety of “non-hazardous” materials including PFAS containing waste, may be one of the targets for enforcement. The EPA, environmental groups, or concerned citizens could initiate enforcement action. The other group that may have CERCLA liability for PFAS is the construction industry.
Again from National Law Review, “PFAS have been found in construction and building materials of many kinds, including to name a few:
- Paints and coatings;
- Solvents;
- Wood finishes;
- Flame retardant materials;
- Window surface treatments;
- Sealants;
- Adhesives;
- Lubricants;
- Roofing membranes;
- Cement (as an additive);
- Cable and wire;
- Gaskets; and
- Flooring products.”
They continue, “The downstream effects of a PFOA and PFOS designation would be massive, including to the construction industry. Waste management companies will be targeted given the large swaths of land that are utilized for landfills and the likely PFAS pollution that can be found in most landfills due to the chemicals’ prevalence in construction materials and consumer goods. These site owners will be the first targeted when the PFOA/PFOS designation is made, which will lead to lawsuits filed against any company that sent waste to the landfills for contribution to the cost of cleanup that the waste management company or its insured will bear.”
If the designation of PFOA and PFOS as CERCLA hazardous substances could affect your company, it would be advisable to discuss with legal counsel and technical advisors early.
Toxics Release Inventory
On January 24, 2022, the public was notified of changes to the reporting of PFAS under Toxics Release Inventory (TRI). The EPA states, “Section 7321 of the National Defense Authorization Act (NDAA) for Fiscal Year 2020 (NDAA) immediately added certain per- and polyfluoroalkyl substances (PFAS) to the list of chemicals covered by the Toxics Release Inventory (TRI) under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and provided a framework for additional PFAS to be added to TRI on an annual basis.”
The three PFAS automatically added by the NDAA beginning with Reporting Year 2021 are:
- Perfluorooctyl iodide (507-63-1)
- Potassium perfluorooctanoate (2395-00-8)
- Silver(I) perfluorooctanoate (335-93-3)
For reporting year 2021 (due July 1, 2022), there are 175 PFAS that are reportable. For a complete list of reportable (2022 and 2023) PFAS under TRI, see “Addition of Certain PFAS to the TRI by the National Defense Authorization Act.” You can also see PFAS Reporting Resources.
Drinking Water
Administrator Michael Regan announced in December 2021 that the agency has finalized a rule establishing drinking water monitoring for 29 per- and polyfluoroalkyl substances and lithium. One of the PFAS is HFPO-DA, better known as GenX, a chemical infamous for contaminating drinking water in North Carolina when Regan ran the state’s environment agency (source E&E News).
The testing is being done under the Fifth Unregulated Contaminant Monitoring Rule (UCMR). Under UCMR, EPA assesses potential contaminants for potential regulation under the Safe Drinking Water Act.
Currently, there are no federally established primary drinking water standards under the Safe Drinking Water Act for PFAS. The results of the testing of drinking water will not likely be available for several years.
Experienced Assistance
While there is no way to predict federal or state environmental enforcement actions that may occur in the coming months, there are a lot of indicators that seem to suggest an active year. If you need help with an environmental issue, we can help. Put our senior team of environmental professionals to work for you. If you would like to start with an initial conversation, contact Jeffrey Bolin, M.S. at 248-932-0228, Ext. 125.
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