“Polluter pays” debate heats up over toxic PFAS chemical cleanup plan
Over the last several weeks, federal officials have received an onslaught of conflicting calls for action regarding a proposal to designate certain types of per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the nation’s so-called “Superfund” law.
The
designation would provide a pathway for the remediation of dangerously
contaminated sites around the United States, including assigning liability for
the hazardous waste cleanup.
The Environmental Protection Agency (EPA) is specifically
proposing that PFOA and PFOS and seven other types of PFAS be designated for
action under the Superfund law, known formally as the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA).
The public comment period on the EPA’s proposal ended
Friday, drawing fevered pleas from
individuals, industries and agencies across the country.
It is the issue of potential liability for PFAS
contamination under CERCLA that is sparking fierce debate, as an array of
parties, including water providers, landfill operators and even farmers, say
they worry they could be saddled with millions of dollars in costs to try to
rid their operations of widespread PFAS contamination that they had no hand in
creating. They want the EPA and members of Congress to carve out
exemptions to protect them.
PFAS are ubiquitous in the environment, used in popular
consumer goods as well industrial processes and firefighting foams. A 2022
analysis found detectable levels of PFAS in about 83% of US waterways.
They are frequently described as “forever chemicals” because they don’t
naturally break down over time. PFAS contamination persists not only in the
environment, but also in the bodies of people and animals.
“The specter of the CERCLA designation… is a very real concern for companies in this country,” said environmental lawyer John Gardella, whose practice focuses on PFAS issues. Companies face potentially “enormous financial consequences,” he said.
Multiple bills have been introduced in
the US Senate to exempt from liability those “passive receivers” of materials
that contain PFAS, such as water treatment plants, airports, fuel depots, and
refineries.
But the legislation is raising the ire of environmental
health and justice organizations who say exemptions would weaken CERCLA and
unfairly benefit industry at the expense of vulnerable communities facing
health risks from PFAS contamination.
“The potential for Superfund cleanups gives hope to
hundreds of communities impacted by PFAS-polluted land and water,” a group of
environmental organizations stated in a joint letter sent
to members of Congress. “To exempt any industry… from PFAS liability is
unjustified and unwise, could delay cleanups and prolong health risks from
PFAS, and could open the door to additional industries demanding exemptions
from this bedrock environmental law.”
There is no reason to
treat PFAS differently than any other type of hazardous substance under CERCLA,
according to Melanie Benesh, a government affairs expert at the Environmental
Working Group (EWG), one of the groups signing the letter to Congress.
Companies or utilities that have acted responsibly are not targeted for
liability under the Superfund framework, and there will be plenty of time to
identify and assign responsibility to the true bad actors responsible for PFAS
contamination, Benesh said.
“The sky is not falling,” Benesh said. “We’re not going
to see a bunch of PFAS sites become Superfund sites overnight.”
“Polluter pays”
PFAS have been linked to many different types of health
problems including cancer, birth defects, decreased fertility, and kidney
disease. A new study released
in July additionally found an association between PFOS and testicular
cancer.
The top companies seen bearing responsibility for PFAS
pollution are 3M, DuPont de Nemours Inc. and spinoffs Chemours Co. and Corteva
Inc. All have agreed to billions of dollars in settlements for
PFAS pollution after internal corporate documents, which came to light through
litigation, showed company officials were aware decades
ago that the PFAS chemicals they were making and using created serious risks to
human and environmental health.
Through CERCLA, the US follows a “polluter pays” principle,
compelling “potentially responsible parties” to pay for the remediation of
designated Superfund sites.
The money 3M and the other companies have agreed to pay
out so far for PFAS contamination cleanup is largely aimed at helping public water suppliers ensure
drinking water is safe. But the scale of contamination across the environment
is so vast that it is unlikely all the costs can be covered by those companies
alone, experts say.
The US Chamber of Commerce estimates that
private sector cleanup costs at PFOA and PFOS Superfund sites would cost
between $700 million and $800 million in annualized costs, with additional
public sector spending needed beyond that.
“3M and DuPont can’t pay for it all,” said Rainer
Lohmann, co-director of a Superfund research center collaboration created by
the University of Rhode Island, Harvard and the Silent Spring Institute. “This
is just the reality. Polluter pays is a fantastic principle and I wish we were
able to make it work. It’s very difficult once you have such widespread use and
contamination. There is not enough money to cover all the costs.”
Some states are already discussing ways to establish
funds for PFAS remediation efforts or zero interest loan programs that
companies can tap into for such remediation efforts.
“Of course, the federal government has set aside some
money already for PFAS issues, but it is likely that increasing pressure will
be put on elected officials at the federal level to set aside even greater
amounts of money for PFAS remediation issues,” said Gardella.
Opposing views
Opposition to the EPA effort to designate certain PFAS as
hazardous substances runs the gamut, from public water utilities in California
to farmers and ranchers across the US Midwest, where fields are often spread
with treated sewage as fertilizer that
may be contaminated with PFAS. PFAS chemicals also can also be found in water
provided to livestock and crops, leading to the presence of PFAS in milk, meat,
and other foods.
In a letter to the EPA filed Aug. 9, a public water
agency in Southern California said the government should focus on eliminating
PFAS in consumer products and not on regulating PFAS as hazardous substances
under CERCLA due to “cost and liability concerns.”
In separate comments,
the Association of California Water Agencies (ACWA) told the EPA that all its
members have “serious concerns with the potential unintended consequences” of
the PFAS designation.
A regional wastewater treatment provider serving
southeast Virginia weighed in with the EPA last week, writing in its comment:
“Successful reduction of this exposure depends upon significantly reducing the
amount of PFAS that enters commerce, particularly the non-essential uses. For
those PFAS that are already in the environment and pose a potential clean-up
burden, it is essential that communities do not bear the costs of clean-up.”
In contrast to the comments from industry that focused on
financial issues, multiple comments were submitted to the EPA from private
individuals, most pleading for protections from PFAS pollution.
“We need to eliminate them right now, and hold
individuals and companies accountable for their use and dispersion,” Linda
Nelson Keane, an art professor from Chicago, told the EPA in an Aug. 8 letter.
Calling PFAS an “offense to our health,” she wrote: “Life on earth needs clean
air, water, and energy. If we know something is bad we must stop its use.”
Among the comments from individuals were expressions of
outrage that the costs of cleaning up PFAS contamination might outweigh the
benefits to citizens, including one stating
the “life of many innocent families… should be held as more important than
money….”
Another stated: “It
is time we stop letting corporations do what is best for profits and time to
start doing what is best for our people.”
