EPA Update
This EPA Update covers U.S. Environmental Protection Agency (EPA) activities from approximately February 15, 2023 through July 1, 2023. The article doesn’t cover every single action taken by EPA during this time but attempts to summarize the highlights with a focus on EPA activities affecting New York.
The EPA Update should be read cafeteria style: take what you want and leave the rest. First, the column discusses actions taken under the Toxic Substances Control Act. Second, it discusses some general EPA goings-on. Third, the article discusses Clean Air Act and climate issues. Fourth, the article discusses water issues. Last, but certainly not least, the article discusses updates in the Superfund program.
Margo Ludmer authored the Superfund section; Mary McHale authored the Clean Air Act section; Joseph Siegel authored the climate change section; and James L. Simpson authored the TSCA, water, and general sections.
TSCA—Toxic Substances Control Act
EPA Proposes Ban on All Consumer and Many Commercial Uses of Perchloroethylene (Perc or PCE)
On June 8, 2023, EPA proposed a ban, under TSCA, on most uses of perchloroethylene (PCE), or perc.1 According to EPA, PCE is a chemical known to cause serious health risks such as neurotoxicity and cancer.2 EPA’s proposal would ban all consumer uses while allowing for many industrial/commercial uses to continue only where strict workplace controls could be implemented, including uses related to national security, aviation and other critical infrastructure, and the agency’s efforts to address climate change.3
PCE is a solvent that is widely used for consumer uses such as brake cleaners and adhesives, dry cleaning, and in many industrial settings. For example, PCE is used in the production of two chemical substances regulated under the American Innovation and Manufacturing Act (AIM) a 2020 law that addresses HFCs and is designed to reduce greenhouse gases. This rule proposes to allow for continued processing of PCE to manufacture hydrofluorocarbons (HFC)-125 and HFC-134a in tandem with strict workplace controls, as the two can be mixed with other substances to make more climate-friendly refrigerants.4 Additionally, the rule proposes to continue to allow the industrial and commercial use of PCE in petrochemical manufacturing, the manufacture of coatings for aircraft skins, and vapor degreasing with PCE to make aerospace parts and engines, as examples of other uses not proposed for prohibition.5
EPA determined that PCE presents unreasonable risk to health. EPA identified risks for adverse human health effects, including neurotoxicity from inhalation and dermal exposures as well as cancer effects from chronic inhalation exposure. EPA expects the prohibitions and other requirements in the proposed rule to mitigate the potential risks to neighboring communities.6 This action should also mitigate long-term risks to PCE in soils, avoiding costly cleanups.
EPA’s proposed risk management rule would rapidly phase down manufacturing, processing, and distribution of PCE for all consumer uses and many industrial and commercial uses, most of which would be fully phased out in two years. According to EPA, the uses subject to the proposed prohibitions represent less than 20% of the annual production volume of PCE.7
EPA is proposing a 10-year phaseout for the use of PCE in dry cleaning, with compliance dates depending on the type of machine in which PCE is used. The proposed phaseout of PCE in dry cleaning would eliminate unreasonable risk for people who work at or spend considerable time at dry cleaning facilities. For the industrial and other uses of PCE that EPA is not proposing to prohibit, EPA is proposing a workplace chemical protection program with a strict inhalation exposure limit and requirements to prevent skin exposure to ensure protection for workers.8
EPA Announces New Framework to Address PFAS
On June 29, 2023 EPA announced9 its framework for addressing new, and new uses of, per- and poly-fluoroalkyl substances (PFAS) under TSCA.10 The framework outlines EPA’s planned approach when reviewing new PFAS and new uses of PFAS to ensure that, before these chemicals are allowed to enter into commerce, EPA will undertake an extensive evaluation to ensure they pose no harm to human health and the environment.11 The framework applies to new PFAS or new use notices that are currently under EPA review, as well as any that EPA may receive in the future.
Under TSCA Section 5, EPA is required to review new chemicals, including new PFAS and new uses of PFAS, within 90 days, assess the potential risks to human health and the environment of the chemical, and make one of five possible risk determinations.12 When potential risks are identified, EPA must take action to mitigate those risks before the chemical can enter commerce.13
Many PFAS are known to persist and bioaccumulate in the environment and people and pose potential risks not only to those who directly manufacture, process, distribute, use, and dispose of the chemical substance but also to the public, including communities who may be exposed to PFAS pollution or waste and already overburdened communities.14 EPA will use the framework to assess PFAS that are likely to be persistent, bioaccumulate, and be toxic (PBT) chemicals.
The New Framework
Under the framework, EPA has set up three categories of PBT PFAS: (i) those that will not result in human exposure; (ii) those that have a low or negligible potential for release and exposure; and (iii) those expected to lead to human exposure and environmental release. The level of testing, analysis, and risk mitigation increases with each category.
By distinguishing uses that could result in environmental releases and those with expected worker, community, or consumer exposure, from those that won’t, as well as requiring upfront testing for many PFAS, EPA expects that the framework will help ensure that any new PFAS won’t harm human health and the environment. At the same time, EPA’s framework also will allow certain PFAS to be used when exposures and releases can be mitigated, and where such use is critical for important sectors like semiconductors.15
EPA expects that data it will obtain for any new PFAS under this framework will advance the agency’s understanding of PFAS more broadly.
EPA Proposes Near Total Ban of Methylene Chloride
On April 20, 2023 EPA proposed a ban of most uses of methylene chloride,16 a chemical known to cause serious health risks and even death.17 The proposal would allow for some uses to continue only where strict workplace controls could be implemented to minimize exposures to workers. Methylene chloride is the second chemical to undergo risk management under the reformed process created by the 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act, following EPA action regarding asbestos exposure last year.18
According to EPA, since 1980, at least 85 people have died from acute exposure to methylene chloride, largely workers engaged in home renovation contracting work and even, in some cases, while fully trained and equipped with personal protective equipment. Many more have experienced severe and long-lasting health impacts, including certain cancers. Methylene chloride use has remained widespread, even after EPA banned one consumer use in 2019. Methylene chloride is used in a variety of ways such as aerosol degreasers and brush cleaners for paints and coatings, commercial applications such as adhesives and sealants, and in industrial settings for making other chemicals. For example, methylene chloride is used as a chemical intermediate in the production of hydrofluorocarbon (HFC) 32, which is used in refrigerant blends developed to replace substances with higher global warming potentials.19
EPA’s unreasonable risk determination20 for methylene chloride was driven by risks associated with workers, workers nearby but not in direct contact with this chemical, consumers, and those in close proximity to a consumer use. EPA identified risks for adverse human health effects, including neurotoxicity, liver effects, and cancer from inhalation and skin exposures to methylene chloride.21
EPA’s proposed risk management rule would rapidly phase down manufacturing, processing, and distribution of methylene chloride for all consumer uses and most industrial and commercial uses, most of which would be fully implemented in just over one year. EPA found that alternative products with similar costs and efficacy to methylene chloride products are generally available, for most of the methylene chloride uses that EPA proposed to prohibit.22
For the industrial manufacturing, industrial processing, and federal uses that EPA is not proposing to prohibit, EPA is proposing a workplace chemical protection program with strict exposure limits. These proposed requirements would allow the continued processing of methylene chloride to produce chemicals that are important in efforts to reduce global warming outlined in the American Innovation and Manufacturing Act.23
EPA is also proposing that specific uses of methylene chloride required by NASA, the Department of Defense, and the Federal Aviation Administration could continue with strict workplace controls because sufficient reductions in exposure are possible in these highly sophisticated environments, thereby minimizing risks to workers.24
EPA Releases Proposed Cumulative Risks Approach Under TSCA
On February 24, 2023, EPA released for public comment and peer review a set of principles for evaluating cumulative risks under TSCA.25 EPA also released an approach for applying those principles to the evaluation of the cumulative risk posed by certain phthalate chemicals undergoing TSCA Section 6 risk evalation.26
For years EPA has analyzed TSCA risk assessments in isolation, by looking at the risks an individual chemical presents. EPA now believes that the best approach to evaluate risk to human health may be to look at the combined risk to health from these exposure to multiples chemicals with the same effects. According to EPA, “a cumulative risk assessment approach can help more appropriately evaluate risks people face and may be helpful in more effectively mitigating the identified unreasonable risks. Evaluating cumulative chemical risks may also provide particularly useful information for communities that are overburdened by chemical pollution. Ultimately, cumulative risk assessment will help EPA better understand and address risks from chemicals as required by the law.”27
Chemicals such as some of the phthalates have particularly similar effects on human health and have been found in the human body at the same time. Public comments received by the agency, other federal and international regulatory agencies and authoritative bodies support a cumulative approach to assessing the risks of phthalate chemicals. Today’s principles and approach documents are the first steps towards EPA conducting a cumulative risk assessment under TSCA.
Cumulative Risk Assessment of Phthalates
Phthalates are a group of chemicals used in many industrial and consumer products, including polyvinyl chloride (PVC) products, to make plastics more flexible and durable. People can be exposed to many phthalates due to their widespread use in industrial and consumer products. According to EPA, phthalates have been found in food and have also been measured in human blood samples. Numerous laboratory animal studies have demonstrated that prenatal phthalate exposure can impact male development and reproduction, in a phenomenon known as “phthalate syndrome.”28
EPA is currently conducting risk evaluations for five phthalates under TSCA, including di-ethylhexyl phthalate (DEHP), butyl benzyl phthalate (BBP), dibutyl phthalate (DBP), di-isobutyl phthalate (DIBP), and dicyclohexyl phthalate (DCHP), and two phthalates subject to manufacturer-requested risk evaluation, including di-isononyl phthalate (DINP) and di-isodecyl phthalate (DIDP).29
EPA has proposed a methodology for evaluating cumulative risk for the phthalate chemicals currently under review. EPA proposes that DEHP, BBP, DBP, DIBP, DCHP and DINP (but not DIDP) are toxicologically similar (and pose an additive hazard) and that the U.S. population is co-exposed to these phthalates. Therefore, EPA is proposing to group these phthalates for cumulative risk assessment under TSCA as described in the “Draft Proposed Approach” document.30
EPA Finalizes Rule Regarding CBI under TSCA
On June 1, 2023, EPA issued a final rule to update confidential business information (CBI) requirements under TSCA.31 According to EPA, the rule increases transparency, modernizes the reporting and review procedures for CBI, and aligns with TSCA’s 2016 amendments. The final rule allows EPA to release non-confidential information quickly and streamlines the process to submit CBI.
The final rule provides guidance on requirements for assertion and maintenance of CBI claims; requirements for electronic reporting of virtually all CBI claims; and sets up new TSCA regulations to centralize and standardize how TSCA CBI claims must be asserted and substantiated.32 The final rule also narrows the types of information in health and safety studies that can be claimed as CBI. For example, the name of the laboratory conducting the study cannot be claimed as CBI unless the name of the laboratory would reveal an association with a company whose connection to a chemical is considered CBI.33
The rule also expands requirements for electronic reporting and uniform requirements to provide publicly releasable copies of certain documents like scientific studies. In addition, it has requirements for electronic communication and maintaining current and accurate contact information.34
The final rule also clarifies how EPA will handle information used in the TSCA program but obtained under other statutes (such as FIFRA) that also has valid CBI claims, in order to ensure consistency with the agency’s duty to make information publicly available when it’s legally able to do so. For example, the final rule would preserve the protections from disclosure that are required under FIFRA for international trade purposes.35
General
EPA Funds New All-Electric Buses to Six New York School Districts
On May 31, 2023, EPA announced that six New York school districts will receive new electric school buses.36 EPA funded this as part of the Bipartisan Infrastructure Law, via the Clean School Bus Rebate Program. The funding, totaling $6.625 million, provides the for the purchase of 17 new electric school buses.37
The six school districts who will benefit from this last round of Clean School Bus rebates are Adirondack Central School District (receiving three buses); Chatham Central School District (receiving five buses); Fabius-Pompey Central School District (receiving five buses); Monticello Central School District (receiving one bus), Naples Central School District (receiving two buses) and Norwood-Norfolk Central School District (receiving one bus).38
EPA stated it is prioritizing applications in the Clean School Bus Program that will replace buses serving high-need school districts and low-income areas, tribal school districts funded by the Bureau of Indian Affairs or those school districts receiving basic support payments under Section 7703(b)(1) of title 20 for students living on Indian land, and rural school districts.39
Clean Air Act and Climate
EPA Reaffirms ‘Appropriate and Necessary’ Finding for MATS
EPA reaffirmed that it remains appropriate and necessary to regulate mercury, acid gases and other hazardous air pollutants (HAPs) from coal-and oil-fired power plants after considering costs.40 The initial appropriate and necessary finding was made in 2000 and affirmed in 2012 and 2016.41 In May 2020, the agency reversed the 2016 finding, which undermined the legal basis for the Mercury and Air Toxics Standards (MATS).42 In this action,43 EPA finds that the 2020 action was based on a fundamentally flawed interpretation of the Clean Air Act that improperly ignored or undervalued vital health benefits from reducing hazardous air pollution from power plants.44 This 2023 final action revokes the 2020 finding that it was not appropriate and necessary to regulate coal-and oil-fired power plants under CAA Section 112.45
The review that led to the 2023 final action was directed by the January 20, 2021, Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”46 In reviewing the 2020 final action, EPA considered updated information on the public health burden associated with HAP emissions from coal-and oil-fired power plants and on the costs associated with reducing those emissions under the MATS.47 Executive Order 13990 also directed EPA to re-evaluate the MATS Risk and Technology Review portion of the 2020 final action, which EPA addressed separately.48
EPA Releases 2022 Power Plant Emissions Data
EPA announced, on February 24, 2023, the release of its annual data on 2022 emissions from power plants in the lower 48 states.49 Although electricity demand increased by 2% for these power plants (and by 3% for all electric generation in the first 11 months of 2022), the 2022 emissions decreased from 2021. This is due primarily to changes in the fuels used in electricity generation; the 2022 data showed a 6% decrease in coal generation and a 7% increase in natural gas generation from 2021.50 The reduction in annual emissions reflects a longstanding trend.51 As part of the Acid Rain Program, the Cross State Air Pollution Rule Programs, and the Mercury and Air Toxics Standards, EPA collects detailed emission data and other information from power plants across the country and posts this information online.52
Final ‘Good Neighbor Plan’ for 2015 Ozone NAAQS
On March 15, 2023, EPA announced the final “Good Neighbor Plan” for the 2015 Ozone National Ambient Air Quality Standards (NAAQS).53 The rule was published in the Federal Register on June 5, 2023.54 “The Clean Air Act directs EPA to issue a federal plan to address pollution that significantly contributes to unhealthy levels of ground-level ozone, or smog, formed from nitrogen oxide emissions traveling beyond certain states’ boundaries.”55 The final rule will “significantly cut smog-forming nitrogen oxide pollution from power plants and other industrial facilities in 23 states.”56 The rule “fully resolves Clean Air Act ‘Good Neighbor’ or ‘interstate transport’ obligations for the 2015 Ozone NAAQS for the included states.”57 The rule relies on “a longstanding regulatory framework and commonly used, affordable pollution controls.”58 The rule includes “a NOx allowance trading program for fossil fuel-fired power plants in 22 states and NOx emissions standards for certain sources within nine industry categories in 20 states.”59
EPA Proposes to Strengthen MATS
On April 5, 2023, EPA announced that it proposed to strengthen and update the Mercury and Air Toxics Standards (MATS) for coal-fired power plants.60 This proposed action was issued pursuant to EPA’s responsibility under the Clean Air Act to periodically review emission standards.61 The proposal, published in the Federal Register on April 24, 2023, explains that “these proposed amendments are the result of the EPA’s review of the May 22, 2020 residual risk and technology review (RTR) of MATS.”62
Based on EPA’s most recent assessment of available control technologies and techniques for reducing hazardous air pollutant (HAP) emissions, EPA is proposing to reduce, by an additional 67 percent, the emissions limit for filterable particulate matter (fPM) for existing coal-fired power plants.63 “This standard is designed to control emissions of nickel, arsenic, and other non-mercury HAP metals from these plants.”64 The proposal also contains information on the cost and feasibility of achieving even lower levels of fPM emissions; EPA is taking comment on whether to finalize a more stringent standard.65
“EPA is proposing a 70 percent reduction in the emissions limit for mercury from existing lignite-fired sources, a limit that would ensure these plants achieve the same level of emissions performance as other coal-fired power plants.”66
EPA’s proposal includes improvements and updates to emissions monitoring for coal-fired power plants by requiring continuous emission monitoring systems to comply with the revised fPM emission limit.67 EPA is also proposing revisions to assure better emissions performance during periods of startup.68
EPA Proposes New Ethylene Oxide Standards for Commercial Sterilizers
Under its Clean Air Act authority, EPA announced a proposed rulemaking on April 11, 2023, outlining new requirements for 86 commercial sterilizers across the country.69 If finalized, the proposal would reduce ethylene oxide emissions from these facilities by 80%, “bringing emission levels down so that risk falls below the EPA’s Clean Air Act benchmark for elevated cancer risk.”70
In announcing the proposed rule, EPA notes that, while many of the facilities that would be subject to the rule have already taken steps to reduce emissions, the proposal will require all 86 facilities and any new facilities to comply with these stricter pollution controls, which have already proven to be effective and achievable.71 The proposal, if finalized, would require all commercial sterilizers to use advanced source monitoring methods to confirm that these pollution controls are operating effectively and report the results to EPA twice per year.72 Under the proposal, facilities would be required to comply with these new requirements within 18 months, which represents an expedited timeline under EPA authority.73 The proposed rule was published in the Federal Register on April 13, 2023.74
Proposal To Strengthen Standards for Chemical and Polymers Plants, Dramatically Reduce Cancer Risks from Air Toxics
On April 6, 2023, EPA announced a proposal to significantly reduce hazardous air pollutants from chemical plants.75 The proposed rule was published in the Federal Register on April 25, 2023.76 The reductions “would dramatically reduce the number of people with elevated air toxics-related cancer risks in communities surrounding the plants that use those two chemicals.”77
If finalized, EPA’s rule would update several regulations that apply to chemical plants, including plants that make synthetic organic chemicals, and regulations that apply to plants that make polymers such as neoprene.78 The proposed rule would reduce emissions of ethylene oxide (EtO), chloroprene, benzene, 1,3-butadiene, ethylene dichloride, and vinyl chloride.79 The proposed updates would reduce 6,053 tons of air toxics emissions each year, which are known or suspected to cause cancer and other serious health effects, including a 58 tons per year reduction in ethylene oxide and 14 tons per year reduction in chloroprene.80 If finalized, the proposal would also reduce emissions of volatile organic compounds by more than 23,000 tons a year.81
“Facilities that make, store, use or emit EtO, chloroprene, benzene, 1,3-butadiene, ethylene dichloride, or vinyl chloride would be required to monitor levels of these air pollutants entering the air at the fenceline of the facility.”82 If annual average air concentrations of the chemicals are higher than an action level at the fenceline (the action levels vary depending on the chemical), owners and operators would have to identify the source and make repairs.83 The fenceline monitoring provisions in this proposal are based on similar Clean Air Act requirements for petroleum refineries, which have been highly successful in identifying and reducing emissions of benzene.84 The monitoring data would be made public through EPA’s WebFiRE database tool.85
Clean Port Upgrades and Clean Heavy-Duty Vehicles
On May 5, 2023, EPA announced the first steps in the development of programs that will invest in our nation’s port infrastructure while reducing air pollution and advancing environmental justice.86 The Clean Ports Program will invest $3 billion in “technologies to reduce harmful air and climate pollutants at U.S. ports and create a zero-emission shipping future.”87 The Clean Heavy-Duty Vehicle Program will invest $1 billion to reduce vehicle emissions; this program will better protect the health of people living and working near ports, schools, and other truck routes.88 EPA published a Request for Information, seeking public comment, in the Federal Register on May 8, 2023.89
Annual Air Report
EPA, on May 23, 2023, released “Our Nation’s Air: Trends Through 2022,” its annual interactive report on the United States’ progress in controlling air pollution.90 The report offers information on the health and environmental impacts of air pollution, trends in air quality and emissions data, and efforts to improve visibility in national parks; it provides an opportunity to explore community-level health impacts of emissions of air toxics reported for 2020.91 The report shows that, between 1970 and 2022, the combined emissions of six key pollutants dropped by 78%, while the U.S. economy grew by 304% over the same time.92 The report notes that air quality concentrations can vary from year to year, even as human-caused emissions continue to decline, and that variations in weather and events such as dust storms and wildfires can have an impact on air quality in affected areas.93
EPA Proposes New Carbon Pollution Standards for Power Plants
On May 11, 2023, EPA proposed new standards to control carbon pollution from coal and natural gas-fired power plants under the Clean Air Act’s New Source Performance Standards.94 The proposal includes standards for new fossil fuel-fired stationary combustion turbines, generally fired on natural gas, and emission guidelines for states specific to existing fossil-fuel fired steam electric generating units and stationary combustion turbines.95 The proposed standards and guidelines reflect the best system of emission reduction, as required by Section 111 of the Clean Air Act, and are consistent with EPA’s traditional approach to setting standards under the Clean Air Act. The proposed rule would deliver up to $85 billion in climate and public health benefits over the next two decades and avoid as much as 617 million metric tons of carbon dioxide while reducing other pollutants such as particulate matter, sulfur dioxide, and nitrogen oxide.96
EPA Announces Climate Project Funding Under the Inflation Reduction Act
EPA has been swiftly moving forward on implementation of the climate change provisions of the Inflation Reduction Act (IRA). On March 30, 2023, EPA announced an award of $3 million to New York under the IRA’s Climate Pollution Reduction Grant program that will assist the state in planning “innovative strategies to cut climate pollution and build clean energy economies across the state.”97 The award is designed to augment climate planning through collaboration with municipalities and meaningful engagement with communities, including those that are overburdened. EPA Region 2 Regional Administrator Lisa Garcia said that, “New York is once again proving itself to be a national climate leader. By signing on to this program, it is positioning communities across the state, large and small, to holistically reduce climate pollution and its impacts, especially for those most overburdened by environmental pollution.”98
In addition to the $3 million awarded to the state, on May 18, 2023 EPA awarded $1 million each to the Albany, Buffalo, New York City and Rochester metropolitan statistical areas.99 These grants were also awarded under the IRA’s Climate Pollution Reduction Grant program. The selected lead agency for each of these metropolitan statistical areas will use the funds “to update existing climate, energy, or sustainability plans, or to develop new plans in collaboration with municipalities and communities” while ensuring meaningful public engagement in the plan and advancement of environmental justice.100
Water Issues
$270 Million for Drinking Water Infrastructure Upgrades in New York
On April 4, 2023, EPA announced $270 million to New York drinking water infrastructure upgrades across the state through the Drinking Water State Revolving Fund.101 As part of the $6 billion the Bipartisan Infrastructure Law provided, EPA is increasing the investments available for the nation’s water infrastructure.
Recent examples of the type of work being funded includes contributing $1.27 million toward financing the project of modernizing aging infrastructure at three facilities in the Albany water system; the Feura Bush Filtration Plant, the Pine Bush Pump Station, and the Loudonville Reservoir.102 The improvements made will increase the quality the life for more than 100,000 people living in Albany.
EPA stated that the Biden-Harris administration is committed to strengthening the nation’s water infrastructure, and will provide significant resources to address key challenges, including climate change, emerging contaminants like per- and poly-fluoroalkyl substances (PFAS), lead pipes, and cybersecurity.103
EPA Takes Action to Protect Sandberg Creek and Fines Newburg Egg Processing Corp. for Violating Clean Water Act
On May 23, 2023, EPA announced it settled an administrative case against Newburg Egg Processing Corp. for allegedly failing to meet standards in the wastewater it treats and sends to a wastewater treatment plant.104 The issue led to excessive nitrogen and ammonia pollution that passed through the wastewater treatment plant and into Sandburg Creek in the village of Woodridge, New York. The company will pay a penalty of $100,000 and has taken steps to address the cause of the violations.105
As an industrial source, the company must first pre-treat its waste stream before discharging it to the municipal wastewater treatment plant. In this case the pollution levels that Newburg Egg discharged caused the Woodbridge treatment plant to exceed its own wastewater permit pollution limits.106
As a result of these violations, excessive amounts of nitrogen, ammonia, phosphorus and other materials were discharged into Sandburg Creek between January 2018 to June 2021. To remedy the problem, Newburg Egg has added additional capacity to hold their wastewater and properly pretreat it before discharging to the Woodridge wastewater treatment plant.107
Superfun(sic) Update
EPA Requests Public Input and Data To Inform Future PFAS Regulations Under CERCLA
On April 13, 2023, EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) asking the public for input regarding potential future hazardous substance designations of per- and polyfluoroalkyl substances (PFAS) under CERCLA.
This request for input follows EPA’s September 2022 proposed rule to designate two PFAS—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and their salts and structural isomers—as hazardous substances under CERCLA. EPA is currently reviewing the comments received on that proposed rule.
Through the April 2023 ANPRM, EPA is seeking input on whether to propose to designate seven additional PFAS as hazardous substances, including HFPO-DA, also known as GenX, and compounds that degrade in the environment by processes such as biodegradation, photolysis, and hydrolysis to form certain PFAS.
EPA is also seeking comments on whether to designate groups or categories of PFAS as hazardous substances. A group or category refers to a set of PFAS that share one or more similar characteristics (e.g., chemical structure or physical properties).
EPA initially announced that it would be accepting comments on the ANPRM through June 12, 2023; however, the agency received several requests for additional time. In response, EPA extended the comment period for an additional 60 days, through August 11, 2023.
If EPA decides to move forward with designating additional PFAS compounds as hazardous substances under CERCLA, the agency will publish a proposed rule and seek public comment.
EPA Hosted Listening Sessions To Inform the Development of an Enforcement Policy Regarding PFAS Contamination at Superfund Sites
On March 14 and March 23, 2023, EPA’s Office of Enforcement and Compliance Assurance hosted listening sessions to hear concerns from the public regarding enforcement under CERCLA in connection with PFAS cleanups.
The listening sessions were intended to help EPA develop a PFAS-specific enforcement discretion and settlement policy, which will clarify when EPA intends to use its CERCLA enforcement authorities or enforcement discretion with respect to PFAS sites. EPA has announced that such a PFAS enforcement policy will take into account various factors, including EPA’s intention to focus enforcement efforts on PFAS manufacturers and other industries whose actions resulted in the release of significant amounts of PFAS into the environment.
The two listening sessions were recorded, and the recordings can be found on EPA’s Enforcement webpage, located at https://www.epa.gov/enforcement. The deadline to submit written comments on this issue was March 31, 2023.
Margo Ludmer is an assistant regional counsel with the United States Environmental Protection Agency, Region 2, New York / Caribbean Superfund Branch. She received a J.D. from the University of Virginia School of Law and a B.A from the University of Michigan.
Mary McHale is an assistant regional counsel with the United States Environmental Protection Agency, Region 2, Air Branch. She received a J.D. from the State University of New York at Buffalo Law School and a B.A from the University of Virginia.
Joseph A. Siegel teaches climate change law at Haub School of Law at Pace University, environmental dispute resolution at Hofstra Law School, is an attorney at the U.S. Environmental Protection Agency, Region 2 office in New York, and chairs the Education/Outreach Subcommittee for Mediators Beyond Borders International’s Climate Change Project. This work is not a product of the United States government or the U.S. Environmental Protection Agency. The authors are not doing this work in any governmental capacity. The views expressed are their own and do not necessarily represent those of the United States or EPA.
James (Jay) L. Simpson is of counsel with Whiteman Osterman & Hanna. Previously, he was an assistant counsel with the New York State Department of Environmental Conservation, and an assistant regional counsel at U.S. EPA Region 2. Any opinions expressed herein are the author’s own. This column is based upon select EPA press releases and other public information.
