Update Monday 5 p.m. — This article has been updated to include comments from Chemours, which disputes some parts of the petition.
WILMINGTON — Clean Cape Fear has joined several other groups nationwide in petitioning the United States Environmental Protection Agency to classify the PFAS as ‘hazardous waste,’ a move that would allow much stronger enforcement actions against polluters.
The petition, filed by the Environmental Law Clinic at Berkeley, asks the EPA to consider dozens of the most common per- and polyfluorinated chemicals as hazardous wastes under the Resource Conservation and Recovery Act (RCRA, sometimes pronounced ‘rick-rah’). The petition was made on behalf of Clean Cape Fear, Michigan’s PFAS Alliance, the Green Science Policy Institute, and others — all groups that hope the move will be a game-changer. Clean Cape Fear is an “of alliance established advocacy groups, community leaders, educators, and professionals,” founded to help hold corporate polluters and government regulators accountable.
Classifying PFAS as hazardous waste would have several major effects, including shifting regulatory efforts from studying whether or not PFAS are definitively toxic for humans to regulating their disposal and cleaning up contaminated areas. It would also unlock Superfund resources and could help deter the importation of PFAS waste to the United States, according to the petition. While environmentalists claim it’s often cheaper to ship PFAS waste products to the US were disposal guidelines are looser than they at the point of production, Chemours — which produces GenX among other PFAS — claims they only re-import waste for recycling, not disposal.
In North Carolina, the petition could also unshackle state regulators from limitations imposed by the Hardison Amendment, which prevents the North Carolina Department of Environmental Quality (DEQ) from enforcing any regulation stricter than what exists at the federal level (right now, there’s no enforcement standard for PFAS).
It’s worth noting that over the last year, the EPA has taken a number of steps to consider to rule-making action on PFAS. But while environmental advocates agree those steps are important, the EPA hasn’t moved the ball on actual enforcement, according to Dr. Tom Bruton, senior scientist at the Green Science Policy Institute.
“It’s true the EPA is doing a lot to gather more information and study the problem, but they’re not doing enough to really take strong enforcement action and hold polluters responsible and stop future contamination — and that’s what we hope to do with this petition,” Bruton said.
Toxic chemicals vs. hazardous waste
There’s compelling evidence that the precursors of PFAS, most notable C8 (PFOA), are dangerous to humans; that evidence has been the basis of several class-action lawsuits against DuPont which forced the company’s decision to abandon the use of C8.
Unfortunately, one of the major problems with regulating PFAS is that there are hundreds of chemicals — just a few dozens are tested for, and almost none have been the subject of clinical toxicological trials.
Ask most scientists studying the chemicals and they’ll tell you PFAS are likely harmful, based both on animal studies, limited human exposure studies, and the chemicals’ close similarity to known toxins. But when it comes to clinical evidence showing statistically significant causation of specific health effects, duplicated for hundreds of different chemicals — the kind of thing usually required to change EPA regulations — there’s still a lot of work to do.
Many environmentalists and health advocates argue that the system is literally preposterous — absurdly reversed. Allowing polluters to release chemicals into the ground, water, and air until those chemicals are proven dangerous strikes many of these advocates as a dangerous and backward approach. Changing that approach, however, is likely to take as long — if not far longer — than building a toxicological case against thousands of individual PFAS, or even just the smaller number of sub-classes of the chemical family.
But hazardous waste? That’s already regulated, and could be addressed immediately by local, state, and federal regulators.
Congress enacted RCRA in 1976 “to promote the protection of health and the environment” by requiring health-protective and environmentally protective hazardous waste management practices. RCRA authorizes EPA to “regulate hazardous wastes from cradle to grave” to ensure that at each stage of their lifecycle, hazardous wastes are safely handled, processed, and disposed of, according to the Berkeley petition.
RCRA would allow local and federal regulators to hold companies like Chemours to a much higher standard when it comes to disposing of PFAS. It would also help prevent companies from using the United States as a dumping ground to avoid stricter regulations impacting their overseas facilities, according to the petition.
It would also change the approach to future lawsuits against PFAS polluters. Currently, lawsuits often have to prove that polluters violated regulations, or — in the case of unregulated chemicals like PFAS — that there was a clear causal link between PFAS and specific health impacts. In a court of law, that’s a difficult case to make. The change might not impact current lawsuits, but if companies kept dumping PFAS in the future, lawsuits wouldn’t have to prove that the chemicals were toxic if the EPA already considered them hazardous waste.
Shipping waste to the U.S. for disposal?
The United States isn’t the only market for PFAS — used in everything from fire-fighting foam to non-stick pans and grease-resistant pizza boxes — and it’s not the only place where Chemours, DuPont, and other companies manufacture the chemicals.
But it is one of the cheapest places to dispose of PFAS waste, owing to limited regulations, according to the Green Science Policy Institute and other members of the petition.
According to the petition, “[p]erhaps one of the most egregious consequences of the lack of regulation of PFAS wastes in the United States is import of these substances for disposal and incineration. Absent regulation, disposal of PFAS-containing waste is presently easier and cheaper in the U.S. than it is abroad. In February of 2019, a news article documented that the Chemours Company had been importing GenX wastes from the Netherlands to the United States.”
The EPA issued a ‘temporary objection,’ but ultimately didn’t halt the practice, because PFAS does not meet the regulatory definitions of hazardous waste under RCRA, according to the petition.
In response to this claim, Chemours stated that the company does import shipments of recovered GenX material into the United States, but for recycling, not disposal.
According to a statement from Chemours, “Chemours has historically recycled GenX materials from our Dordrecht [Netherlands] facility at our Fayetteville Works plant, as well as at a contractor site in Europe, in order to reduce the quantity that is emitted or becomes waste. This is material that was originally created at the Fayetteville site for use in our Dordrecht production processes, and we have historically transported the material to its point of origin to ensure we continue to recycle the vast majority of the GenX rather than dispose of it. The re-importation of material from Dordrecht allows for responsible recycling, not as it is falsely portrayed in the petition to EPA. It’s also important to note that fewer emissions result from recycling material than from making new material.”
Chemours does not deny that the recycling process creates PFAS waste, but notes the process reduces overall net waste.
“The recycling process does not create any more waste than there would be from disposal of the recovered material and the manufacture of new product. Through recycling, we make less new material, which generates less waste overall,” according to a Chemours spokesperson, speaking based on their “knowledge and understanding.”
RCRA is designed to handle the current production, handling, and disposal. It is, in other words, a good tool for addressing current and future pollutions, according to Bruton.
But what about remediation, including contaminated groundwater, riverbeds, aquifers, and other issues?
According to Bruton, while RCRA doesn’t address past pollution, it does trigger another federal program that was specifically designed for legacy contamination — the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, also known as the federal Superfund law.
“If EPA listed these chemicals as RCRA hazardous waste, they would automatically get encompassed by the Superfund rules — Superfund is the retroactive part,” Bruton said. “That makes it easier to get money for clean up of past pollution.”
By way of analogy, take the Navassa creosote Superfund site. Creosote was used at the timber and wood treatment facility for decades before the EPA, RCRA, or Superfund even existed. Thirty-five years after the site shut down, the EPA added it to the list of Superfund sites; the federal program allows clean-up, even if the chemical or hazardous waste involved wasn’t regulated at the time of pollution. Thus, even though PFAS has been unregulated for decades, Superfund resources could still be used to clean up decades’ worth of pollution.
[Editor’s note: The NCDEQ has not yet responded to questions about the petition sent on Thursday morning.]
The petition was filed under 42 U.S.C. § 6974(a), which requires the administration to respond within a ‘reasonable’ amount of time. Those familiar with the government’s highly subjective interpretation of the word ‘subjective’ will note this does not necessarily mean ‘soon.’ Still, the petitioners say they are hopeful that the petition process will be considerably more expedient than the EPA’s current trajectory.
Below: The Environmental Law Clinic petition.
Send comments and tips to Benjamin Schachtman at email@example.com, @pcdben on Twitter, and (910) 538-2001