The proposed listing of two per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), a.k.a. Superfund, has many in the regulated community concerned. With the strict liability under CERCLA, the concern is understandable.
Specifically, the Environmental Protection Agency (EPA) has proposed to add perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as CERCLA hazardous substances.
Recently, the EPA held listening sessions with respect to this proposed action. The sessions consisted of a brief introduction followed by an opportunity for those who pre-registered to provide comments (no responses by the EPA, just comments by attendees).
PFAS CERCLA Focus
The EPA stated in the March 23, 2023, session that they intend to focus on “significant sources of PFAS.” One of the slides in the presentation states the following: “EPA intends to focus on manufacturers, federal facilities, and other industrial parties whose actions resulted the release of significant amounts of PFAS (their emphasis).” Considering the recently proposed Maximum Contaminant Level (MCL) of 4 parts per trillion (ppt) for these compounds, one has to question what the term “significant” means in this statement.
Where EPA Will Not Focus
The EPA also stated that there will be no agency enforcement at the following:
- Water Utilities
- Publicly Owned Treatment Works
- Municipal Landfills
- Farms that applied biosolids
- Tribal or local fire departments
- State or tribal municipal airports
This EPA decision does not prevent these companies from being named as a Potentially Responsible Party by one of those sources where CERCLA enforcement is taking place. Further, this does not prevent third party lawsuits being filed. Both of these points were mentioned by commenters.
The law firm Duane Morris had this take on the listening sessions: “The listening sessions did little to illuminate exactly what might qualify as an action that contributes to or results in a release of a significant amount of PFAS, but EPA did indicate it is also developing equitable factors to determine whether to exercise its enforcement discretion on a case-by-case basis. These equitable factors may include considerations such as whether a potentially responsible contractor ‘acts in the shoes’ of a state entity, whether an entity performs a public service and the degree of culpability for the Potentially Responsible Party (PRP).”
Unique Challenge of PFAS
The PFAS issue is unlike any other environmental contaminant that has been addressed considering (1) its ubiquitous nature (virtually found everywhere on Earth), (2) how widely used the group of chemicals have been for decades in industrial to consumer products, and (3) that it is found in nearly everyone’s bloodstream.
As we have previously stated, the unique challenge of addressing the global issue of PFAS under our existing regulatory framework, while still lacking the necessary toxicological understanding of these chemicals, does not seem to be the best approach.
PFAS in Blood, MCLs, and Declining Concentrations
We know, for example, that concentrations of specific PFAS in the blood of the general US population is orders of magnitude higher than the proposed Maximum Contaminant Level of 4 ppt.
According to the Agency for Toxic Substances and Disease Registry (ATSDR), the concentration of PFOA in the “general US population” is 1.4 ppb (or 1,400 ppt), and for PFOS, it is 4.3 ppb (or 4,300 ppt). Further, as use of PFOA and PFOS has been discontinued, so too has the concentration in humans. From approximately 2000 to 2018, the concentration of PFOA in blood samples declined more than 70%, and for PFOS, it declined more than 85%.
*ppb = parts per billion
*ppt = parts per trillion
We hope the EPA will give careful consideration to the comments made during the listening sessions. Further, in developing plans to address the unique challenges posed by decades of use of PFAS, we hope the EPA considers a robust understanding of the toxicological effects (human health and environment) of these chemicals before developing final regulations and enforcement plans.
For more information on PFAS, see our PFAS Resource Page.
This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
The blog was reviewed by Jeffrey Bolin, M.S. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
Sign up for our monthly environmental newsletter.
Principled Foundation | Thoughtful Advice | Smart Solutions
Celebrating our 35th Year 1988-2023