The EPA's Designation of PFOA and PFOS as Hazardous Substances: Implications and Enforcement Policies
Jenna Rackerby
Environmental Associate & Clean Energy Advocate (NY, NJ, D.C., & OR) (Any views expressed are solely my own, do not constitute legal advice, and do not reflect the views of my employer)
Author: Jenna Rackerby
The Environmental Protection Agency (EPA) has officially designated perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This significant regulatory step, effective 60 days after its publication in the Federal Register, aims to address the challenges posed by these persistent environmental pollutants, commonly referred to as "forever chemicals."
Background and Regulatory Evolution
PFOA and PFOS belong to the larger family of per- and polyfluoroalkyl substances (PFAS), which have been utilized in numerous industrial applications and consumer products since the 1940s. Their resistance to heat, water, and oil has made them valuable, yet their persistence in the environment and human body has raised serious health and environmental concerns. The durability of these chemicals has been linked with various adverse health effects, including cancer, liver damage, decreased fertility, and thyroid disease.
EPA's Final Rule and Implications
The new rule by the EPA integrates PFOA and PFOS into the list of hazardous substances, granting the agency enhanced powers to mandate clean-up efforts and hold polluters accountable. This move also triggers mandatory reporting for any releases of these substances that meet or exceed certain thresholds.
Accompanying the final rule, the EPA's enforcement discretion policy clarifies its intent to focus on significant sources of PFAS pollution without overburdening smaller, non-major entities like local fire departments, municipal landfills, and water utilities. This policy is designed to alleviate undue regulatory pressure on smaller contributors while ensuring that major polluters address their impact on the environment.
Legal and Technical Challenges
The designation of PFOA and PFOS as hazardous substances reshapes the legal and technical landscapes for industries and entities involved with these chemicals. Manufacturing, using, or discharging these substances now carries heightened liabilities and increases the risk of litigation under CERCLA, potentially leading to significant financial and legal consequences. The chemical stability of PFAS poses substantial challenges for remediation, as current methods like activated carbon filtration and high-pressure membranes, while effective, incur high costs and demands. Thus, developing more cost-effective and efficient technologies is crucial for managing PFAS pollution effectively.
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Impact on Stakeholders and Future Directions
The regulatory changes will affect a broad spectrum of stakeholders, from manufacturers to waste management services. The rule not only necessitates a reassessment of practices to ensure compliance but also opens opportunities for legal and environmental professionals to aid in navigating this complex regulatory landscape. Future regulatory actions may involve additional PFAS compounds being classified as hazardous, which would further expand the scope of oversight and liability.
The EPA has also signaled intentions to enhance PFAS monitoring in water systems and to consider stricter discharge limits under the Clean Water Act, indicating a comprehensive approach to managing PFAS contamination across multiple platforms.
Conclusion
Overall, the EPA’s classification of PFOA and PFOS as hazardous substances is a transformative development in environmental regulation, highlighting a shift towards stringent oversight and accountability in chemical pollution. As the regulatory environment continues to evolve, staying informed and prepared for new compliance requirements will be crucial for all impacted stakeholders.
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