August 3, 2022
Dozens of House lawmakers and environmentalists are urging EPA to quickly propose two per- and polyfluoroalkyl substances (PFAS) for listing as “hazardous substances” under the Superfund law, arguing the move alone would not ban the use of the toxic chemicals but would be a “first step” to holding polluters accountable.
The letters are being sent after EPA again missed a self-imposed deadline to issue the proposed rule in June though a top agency official said earlier this week he expects the measure to be issued “in the next month or so.”
EPA’s first-time proposal for listing perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as “hazardous substances” under the Superfund law will require industry to report releases of the substances, though industry groups have pushed back, fearing it will indirectly drive costly cleanups at a range of sites and facilities across the country.
The industry officials have accused EPA of regulatory overreach and say to date that only Congress has listed substances under the Superfund law.
But the lawmakers’ and environmentalists’ letters push back on industry claims, suggesting the proposal is only a “step” to be coupled with “other broad-based actions” to address PFAS contamination.
“As you know, the designation of a substance as hazardous under [the Superfund law] does not ban its use, and many such chemicals to this day remain in commerce and are widely used in commercial products,” says the Aug. 3 letter from 127 House lawmakers to EPA Administrator Michael Regan.
“However, coupled with other broad-based actions needed to tackle additional PFAS, the designation of PFOA and PFOS as hazardous substances is an important first step toward helping hold polluters accountable, encouraging more responsible stewardship of forever chemicals, and cleaning up contaminated sites,” says the letter.
Rep. Debbie Dingell (D-MI), along with Reps. Frank Pallone (D-NJ) and Paul Tonko (D-NY), the chairmen of the House Energy and Commerce Committee and environment and climate change subcommittee, respectively, led the letter writing campaign.
One Republican — Rep. Brian Fitzpatrick (R-PA) — signed the letter.
The Environmental Working Group (EWG) applauded the House letter noting that EPA has fallen behind on its schedule for issuing the proposed Superfund listing.
“The agency is behind schedule,” EWG said in a Aug. 3 statement, referring to the agency’s “PFAS Strategic Road Map” issued last year which slated the proposal for spring 2022.
The House letter comes on the heels of a July 27 letter to President Joe Biden from dozens of environmental groups, including EWG, also urging for quick action on EPA’s proposal.
“In October 2021, you announced ‘accelerated efforts’ across the government to tackle PFAS, including plans to propose PFOA and PFOS as hazardous substances,” the environmentalists’ letter says.
“Your announcement reaffirmed your campaign pledge, in The Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity, to designate PFOA and PFOS as hazardous substances, recognizing the contamination crisis caused by decades of unregulated releases of these toxic chemicals.”
EPA’s proposed rule to list PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or Superfund law, has been under review by the White House Office of Management & Budget (OMB) since January.
Once final, the rule would require parties to report releases of the chemicals, opening the door for EPA to recover cleanup costs. It is also expected to encourage parties to settle cleanup disputes.
But the agency has again missed its latest deadline for issuing the first-time proposal, after indicating in the spring Unified Agenda that it would issue the proposal by June of this year.
EPA officials have said that publishing the CERCLA rule “remains a top priority for EPA. We are working as quickly as possible to publish” it, a spokeswoman told Inside EPA in response to an earlier request for comment.
But EPA deputy water chief Bruno Pigott said at an Aug. 1 Senate field hearing that he expects the Superfund proposal to be issued in the “next month or so.”
He also reiterated the agency’s plans to propose drinking water standards for PFOS and PFOA by the end of 2022, with final rules expected a year later.
Industry and other experts say EPA is likely facing multiple legal and procedural hurdles in its long running effort to propose the rule.
One industry expert says a key factor that is likely delaying the proposal is the need for the agency to produce a rigorous risk analysis, prompted by a statutory mandate necessary for listing.
While EPA is also likely to respond in part to calls from the U.S. Chamber of Commerce and other groups for a tougher regulatory review given the massive cleanup costs the listing will indirectly drive, the expert and another source do not believe the agency will conduct the full-blown cost-benefit analysis the industry groups are seeking.
The agency also may be under pressure to list additional PFAS and to craft a waste listing under the Resource Conservation & Recovery Act (RCRA), the federal waste law that would grant EPA control over which wastes fall under the Superfund law’s liability scheme, the source adds. — Rick Weber (firstname.lastname@example.org)