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Thursday, May 30, 2024

EPA designates 2 PFAS as hazardous substances, increases liability risk for producers

Administrator Michael Regan is head of the EPA, which has added PFOA and PFOS to the hazardous list and mandates polluters pay for, clean up or reimburse government to clean up Superfund sites. (Port City Daily/File)

NORTH CAROLINA — The Environmental Protection Agency established two PFAS compounds prevalent in the Cape Fear region as hazardous substances, but some environmentalists are concerned about potential exemptions within the regulation.

READ MORE: EPA proposes adding 2 ‘forever chemicals’ to hazardous substances list

ALSO: EPA announces new PFAS standards for water utilities, but fails to address NC chemical industry

In 2022, the EPA began looking into adding the substances perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) to the hazardous list. The compounds have been used in the creation of everyday products from cookware to cosmetics.

While it doesn’t ban PFOA and PFOS, it puts stricter regulations on the compounds.  It’s the first time the EPA has enacted the Comprehensive Environmental Response, Compensation and Liability Act, or “Superfund” law, for any PFAS.

The rule will go into effect in 60 days and requires entities that release PFOA and PFOS to immediately report discharges to the EPA. Now that the compounds are recognized under the Superfund law, it gives the EPA authority to take legal action to force dischargers to pay for and carry out cleanups of areas deemed dangerously contaminated. The government can also clean up the sites and require reimbursement from the companies.

Betsy Southerland, who retired after 33 years with the EPA and is now a member of the Environmental Protection Network, told Port City Daily the classification weakens PFAS emitters’ ability to cast doubt on dangers posed by the compounds. 

“There’s no arguing anymore about how much they have to do or whether it’s even necessary,” she said.

PFOA and PFOS are some of the most recognized compounds among thousands of chemicals defined within the PFAS class. The two “legacy PFAS” compounds remain widespread in the United States, although their main producers — DuPont and 3M — claim they have not produced them in the country for years. 

PFOS proliferated through the use of firefighting foam, largely produced by 3M Company. 3M has a goal to cease manufacturing all PFAS by 2025.

DuPont created Teflon with PFOA. Almost two decades ago, the EPA reached a voluntary agreement with DuPont to replace PFOA with GenX, before finding the replacement substance was potentially even more dangerous than its predecessor. 

The substances were discharged in the Cape Fear River for decades, and blood tests have shown higher levels of PFOA and PFOS in New Hanover and Brunswick county residents than the national average. 

“Communities across the Southeast and the country have been shouldering the costs of PFAS contamination for far too long,” Southern Environmental Law Center senior attorney Kelly Moser said in a statement. “Today’s designations will help put the burden of addressing PFAS pollution back on the polluter.”  

Clean Cape Fear co-founder Emily Donovan said she viewed the EPA’s action as a step in the right direction. Donovan argued it is important to hold 3M and DuPont accountable, as the companies knew their chemicals were dangerous and concealed as much for decades. However, she pointed out thousands of PFAS compounds remain widely used.

“Superfund is a slow process,” Donovan said. “We don’t expect today’s announcement to have an immediate impact on the needs of our communities, especially when we were exposed to hundreds of other PFAS — like GenX and Nafion byproduct 2. Ultimately, we need the EPA to regulate PFAS as a class. We will keep fighting until all PFAS are designated as hazardous substances.” 

While environmentalist organizations broadly viewed the news as a positive development, some had reservations. Cape Fear River Watch executive director Dana Sargent said she thought the designation should have been carried out years ago and argued it fails to address many industries’ continued reliance on PFAS. 

Sargent pointed to an EPA discretionary memo stating the agency plans to provide CERCLA liability exemptions for entities involved with the compounds that do not produce them, also known as “passive receivers.” This includes wastewater treatment utilities, airports, farmers, and certain landfills.

The Cape Fear River Watch leader said she didn’t want to see utilities on the hook for damages. 

However, EPA’s assistance enforcement administrator, David Uhlmann, told the AP, the agency intends to use its power of enforcement “on significant sources of PFAS contamination” — not farmers, municipal landfills or airports, fire departments and water utilities.

Sargent also argued exempting liability for indirectly involved entities may reduce pressure to find the best long-term solution to the issue, which she views as a broader strategy for replacing PFAS with safer alternatives. 

The Environmental Protection Network, a group of over 650 former EPA officials, expressed similar concerns in a letter to House and Senate representatives on Thursday. They argued it is extremely rare for a hazardous substance designation to cause lawsuits against passive receivers, but removing the threat of liability would weaken incentives to implement long-term PFAS pollution controls.

This is the second PFAS regulatory announcement from the EPA this month. Last week, the agency announced first-time legally enforceable maximum contaminant levels (MCL) for six types of PFAS:

  • PFOA 4.0 parts per trillion (ppt) 
  • PFOS 4.0ppt 
  • GenX chemicals 10ppt 
  • PFNA 10ppt 
  • PFHxS 10ppt  
  • Mixtures of GenX, PFNA, PFHxS, and PFBS meeting a hazard index standard of 1

However, the regulation puts responsibilities on public water utilities, now required to complete initial monitoring of the compounds by 2027 and implementing solutions to reduce chemicals exceeding the MCL by 2029. After 2029, utilities with PFAS exceeding MCLs will be required to give public notice of the violation and take action to reduce them in drinking water.

CATCH UP: EPA announces new PFAS standards for water utilities, but fails to address NC chemical industry

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Shea Carver
Shea Carver
Shea Carver is the editor in chief at Port City Daily. A UNCW alumna, Shea worked in the print media business in Wilmington for 22 years before joining the PCD team in October 2020. She specializes in arts coverage — music, film, literature, theatre — the dining scene, and can often be tapped on where to go, what to do and who to see in Wilmington. When she isn’t hanging with her pup, Shadow Wolf, tending the garden or spinning vinyl, she’s attending concerts and live theater.

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