The U.S. EPA has designated two types of PFAS as hazardous substances, a long-awaited move meant to hold polluters accountable for related pollution. The agency does not intend to pursue municipal landfills or water utilities in its enforcement strategy, it said in a news release and separate policy statement Friday.
The EPA says perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) are “widely used” PFAS that have been linked to cancer, immune and developmental issues and other health impacts. The EPA is targeting such chemicals under the Comprehensive Environmental Response, Compensation and Liability Act, known as CERCLA or Superfund.
“Designating these chemicals under our Superfund authority will allow EPA to address more contaminated sites, take earlier action, and expedite cleanups, all while ensuring polluters pay for the costs to clean up pollution threatening the health of communities,” said EPA Administrator Michael Regan in the news release.
Under the new rule, releases of the two per- and polyfluoroalkyl substances that meet or exceed one pound per 24-hour period will have to be immediately reported to the agency’s National Response Center or a related state or tribal agency. Federal entities that transfer or sell their property must notify officials if they have stored, released or disposed of PFOA or PFOS on the property and certify they have cleaned up related contamination, according to the new rule.
The EPA also issued a separate enforcement discretion policy meant to make clear that EPA “will focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment,” such as PFAS manufacturers or certain federal and industrial facilities.
The policy states the EPA does not intend to pursue publicly owned or operated municipal solid waste landfills, farms “where biosolids are applied to the land,” publicly owned treatment works, certain airports, local fire departments and several other entities.
In the months before the hazardous substance designation, the EPA had hinted it intended to avoid pursuing enforcement at some landfill entities. However, the waste industry was still concerned about the designation and has advocated for a narrow exemption from such regulations due to possible liability and cost concerns. Industry groups say they are “passive receivers,” meaning they do not generate PFAS or have control over PFAS-containing items that enter their facilities.
NWRA and SWANA, as well as other members of the waste and organics industries, have been asking Congress for an official CERCLA exemption since 2022, when the EPA first announced its intent to begin rulemaking on the hazardous substance designation.
The groups have said that an EPA designation of PFOS and PFOA as hazardous substances could still lead to unintended consequences. Landfill operators have said the designation could force them to reject PFAS-containing material, incur new costs for sorting or processing the material or face PFAS-related legal action.
The groups have thrown their support behind a federal bill that aims to shield such industries from liability by formalizing such an exemption for landfill operators and other entities. The Resource Management PFAS Liability Protection Act, introduced in May 2023, has not advanced.
Environmental groups such as the Environmental Working Group have applauded the EPA’s intent to list PFOS and PFOA as hazardous substances, saying the designation will help hold polluters accountable, especially in communities considered environmental justice neighborhoods already overburdened by pollution.
EWG has spoken out against the waste industry’s request for passive receiver protections, saying it could create a loophole for major polluters.
Melanie Benesh, vice president of government affairs at EWG, said in an interview prior to the EPA’s announcement that the agency isn’t likely to target the waste industry, in part because of much more major polluters that are likely on its enforcement priority list.
One of those major polluters could include the U.S. Department of Defense due to its notable use of aqueous film-forming foam, she said. PFAS has been used in AFFF for decades, and runoff from the fire-suppressing foam has been known to migrate into soil and groundwater. In January, the DOD said it was working with a range of PFAS mitigation companies to scale its cleanup efforts.
The hazardous substance designation news comes just a week after the EPA set final drinking water standards for multiple types of PFAS, which many landfill operators say they support despite potential impacts to how they manage leachate or interact with wastewater treatment facilities. The agency also released updated interim guidance on PFAS destruction and disposal through a range of technologies.
