SPAN Encourages Continued Federal Leadership Addressing PFAS of Known Concern

The Environmental Protection Agency (EPA) is continuing to demonstrate critical federal leadership in addressing PFOA and PFOS by designating the compounds as “hazardous substances” under CERCLA, the nation’s “Superfund” law.  This action reflects the Agency’s focus on prioritizing substances which have presented concerns to federal and state regulators for many years.  The Sustainable PFAS Action Network (SPAN) has long-supported the use of existing statutory authorities and taking risk-based actions to tackle PFAS-related issues. This step represents EPA’s continuing progress to advance the Agency’s PFAS Strategic Roadmap. 

SPAN is hopeful that EPA moves forward cautiously as it implements this “first of its kind” action under Section 102(a) of CERCLA, which reserves “hazardous substance” designations for substances that may present substantial danger to the public health or welfare, or the environment when released.  The rule also requires entities to report releases of one pound or more of PFOA or PFOS in any 24-hour period to the appropriate authority, enabling EPA and authorized state agencies to respond. 

The listing leaves uncertain how many existing clean-up sites will be affected and what standards ultimately would be applied to clean up of PFOA or PFOS contamination at a specific site – potentially even at Superfund sites where clean-ups were thought to have been completed.   The action taken by EPA also could lead to the identification of new Superfund sites if an area with known contamination is assessed by federal or state officials as posing a threat to health or the environment.   

With these concerns in mind, SPAN also was pleased to see EPA’s release of an enforcement policy that describes the Agency’s plans to focus rule enforcement on entities that have manufactured and released PFOA and PFOS in significant amounts and not on entities, such as publicly owned treatment works and community water systems, which may be only passive receivers of the substances. While the Agency’s action reflects a risk-based approach, our members remain concerned about wider-reaching actions that are less limited in scope.  Specifically, EPA has signaled it is considering future designations, including for entire “categories” of PFAS, which suggests a departure from policy approaches that recognize the unique differences and chemical distinctions among the family of per- and poly-fluoroalkyl substances.