PFAS and Superfund
In recent years, a number of chemicals that have been largely unregulated have generated considerable concern, including at existing or prospective Superfund sites. Of intense and growing concern is a group of compounds known as per- and polyfluoroalkyl substances (PFAS). Perhaps most common among these is perfluoroctanoic acid (PFOA), which was used to make non-stick materials like Teflon, and was also used widely in firefighting foam;1 and perfluorooctanesulfonic acid (PFOS), used in stain-resistant fabrics and food packaging, among other uses.
On Aug. 26, 2022, the Environmental Protection Agency (EPA) issued a proposed rule designating PFOA and PFOS as CERCLA “hazardous substances.”
Basis of the Proposal
[The proposed designation] is based on significant evidence that PFOA and PFOS may present a substantial danger to human health or welfare or the environment. PFOA and PFOS can accumulate and persist in the human body for long periods of time and evidence from laboratory animal and human epidemiology studies indicates that exposure to PFOA and/or PFOS may lead to cancer, reproductive, developmental, cardiovascular, liver, and immunological effects.2
Some PFAS compounds have adverse health effects at extremely low concentrations. On June 15, 2022, EPA issued an Interim Updated Drinking Water Health Advisory for several PFAS compounds including PFOA and PFOS. (Such an advisory is non-regulatory, but it represents EPA’s assessment of the level at which vulnerable people are protected from adverse health effects resulting from exposure throughout their lives to these individual PFAS in drinking water.) For PFOA, the interim drinking water advisory level is four parts per quadrillion.3 This is remarkable for many reasons, not least of which is that it is about 500 times lower than the usual laboratory detection level of two parts per trillion.4 In other words, as a practical matter, it is virtually impossible to measure. The drinking water advisory level for PFOS is 20 parts per quadrillion, also functionally unmeasurable.
Why Is It Important for PFAS To Be CERCLA “Hazardous Substances”?
PFAS are not currently regulated under federal environmental laws.5 In particular, there are as yet no federal “maximum contaminant levels” for drinking water; they are not “hazardous wastes” under RCRA, and they are not yet “hazardous substances” under CERCLA. However, if disposed of they are “solid wastes” under RCRA, and if released into the environment they are “pollutants or contaminants” under CERCLA. But they do not trigger corrective action obligations under RCRA, and the government’s enforcement authorities under CERCLA are significantly circumscribed, though some action can be taken under each statute.
Under § 104(a) of CERCLA,6 EPA can take a Superfund response action whenever (a) any hazardous substance is released or there is a substantial threat of such a release into the environment, or (b) there is a release or substantial threat of release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health. Thus, there is a significantly higher burden for EPA to take a response action with respect to a “pollutant or contaminant” than for a “hazardous substance.” Moreover, under §§ 106 and 107 of CERCLA,7 EPA can take enforcement actions for cost recovery and/or injunctive relief (i.e., cleanup work) only for a release or threatened release of a hazardous substance.
PFOA and other PFAS are being found in groundwater across the United States, including at some current Superfund sites. If the proposed rule is finalized, it is possible—indeed, likely—that sites where PFAS contamination is found will be added to the NPL so that the full range of CERCLA authorities can be brought to bear.
Cleanup of PFAS Contamination
Fortunately, PFOA and some other PFAS can be removed from water relatively easily, with common treatment technologies such as air stripping or activated carbon. Unfortunately, some PFAS (including compounds intended as a replacement for PFOA and given the trade name “GenX” by manufacturer DuPont) are somewhat less easily removed from water.8
In 2017, at the request of the New York state Department of Environmental Conservation, EPA added to the Superfund National Priorities List (NPL) the St. Gobain Performance Plastics McCaffrey St. facility in the village of Hoosick Falls, New York because of PFOA discharges that contaminated the municipality’s public drinking water supplies.9 This was only the second time EPA proposed to add a site to the NPL based on discharges of a “pollutant or contaminant” (rather than a hazardous substance), and the first time involving PFOA or any PFAS. Air deposition of PFAS in the Hoosick Falls community is also a concern, and similar concerns arise near other sources of air emissions. For example, New Jersey is investigating the impact of air deposition from the Chemours/DuPont and Solvay facilities in the southern part of the state;10 several hundred homes were found to have private well water contaminated with PFAS above state standards (see below), and have been provided with Point of Extraction Treatment Systems (POETs) or connected to municipal drinking water supplies.
PFAS Litigation
DuPont, the maker of Teflon, faced some 3,500 toxic tort suits in Ohio, alleging injuries from PFOA-contaminated drinking water.11 In December 2016, a jury in the first of these to go to trial awarded $2 million to the plaintiff in compensatory damages, and in January 2017 it awarded a further $10.5 million in punitive damages.12 A few weeks later, in February 2017, DuPont and Chemours (its former subsidiary, which it spun off in 201513) settled these cases for a cash payment of $671 million.14
And anyone who has watched television during the past several months will have seen frequent advertisements by lawyers encouraging service members who were stationed at Marine Base Camp Lejeune to join toxic tort suits over alleged exposure to PFAS while serving there.15
State Regulation of PFAS
The legislatures in at least 31 states are currently considering bills concerning chemicals, many of them addressing PFAS.16 A significant number of states have already established their own standards or guidelines for PFAS. At least eight states17 have proposed or issued Maximum Contaminant Levels (MCLs) for two or more PFAS compounds, most commonly PFOA and PFOS. New Jersey was the first state to adopt a drinking water Maximum Contaminant Level (MCL) for any PFAS; it has adopted MCLs of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFNA, and added PFNA to its List of Hazardous Substances under the New Jersey Spill Act (the New Jersey analog to CERCLA).18 New Jersey has also set Interim Specific Groundwater Quality Criteria for PFOA and PFOS.19
New York has set MCLs of 10 ppt for PFOA and PFOS,20 and has also promulgated Soil Cleanup Objectives for these compounds.21 New York also established PFOA, PFOS, and their salts as “hazardous substances” under its cleanup law.22 The State of Washington concluded that PFAS, as a class, fall under its Toxics Control Act “and will need to be cleaned up.”23
Vermont has established an MCL of 20 ppt for PFOA;24 New Hampshire set MCLs for four PFAS including PFOA (12 ppt) and PFOS (15 ppt);25 and Pennsylvania recently finalized MCLs for PFOA (14 ppt) and PFOS (18 ppt).26 North Carolina set a “health goal” of 140 ppt for GenX,27 Dupont’s Teflon replacement compound (actually, a group of compounds). Some states have issued PFAS health advisories for drinking water, rather than regulatory standards, and some states have issued groundwater, soil and air standards.28 And in 2019 New York enacted legislation phasing out the use of PFAS-containing firefighting foam.29 Several states require monitoring for PFAS in public drinking water systems, including California, New Jersey and New York.30
As can be seen from the above, no state has set a regulatory standard below the low parts-per-trillion level. Thus, these state standards are orders of magnitude higher (less restrictive) than the EPA interim health advisory for PFOA and PFOS. At this writing, EPA itself is preparing to propose a federal MCL for at least those two compounds;31 it is unlikely the standard will be below the usual detection limit of 2 to 4 ppt.
And by the Way
On Dec. 5, 2022, EPA proposed a rule to improve Toxic Release Inventory (TRI) reporting on PFAS.32 The rule would eliminate an existing exemption that allows facilities to avoid reporting when PFAS are used in de minimis concentrations. Because PFAS are used at low concentrations in many products, removing the de minimis exemption ensures that covered facilities that make or use listed PFAS will no longer be able to avoid disclosing releases and waste management quantities for these chemicals.
In 2020, Congress added certain PFAS to the list of chemicals for which TRI reporting is required, and provided a framework to automatically add other PFAS in future years. Currently, some 180 PFAS compounds are on the list. Congress established TRI reporting thresholds of 100 pounds for each of the listed PFAS. The previous administration codified the provisions in a manner that allows facilities to disregard certain de minimis concentrations of chemicals in mixtures or trade name products (below ١٪ concentration for each of the TRI-listed PFAS, except for PFOA for which the concentration is set at ٠.١٪). The 2022 proposed rule would eliminate the availability of that exemption and require facilities to report on PFAS regardless of their concentration in products. This reporting might reveal manufacturing sites where PFAS are being used that might be sources of contamination.
Walter Mugdan is the deputy regional administrator of the U.S. Environmental Protection Agency’s Region 2. Any opinions expressed herein are those of the author, and do not necessarily reflect the position of the U.S. Environmental Protection Agency.
Endnotes
13 See further discussion of Dupont’s spin-off of Chemours below, Section V.
