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'Important Step': EPA Finalizes Rule to Clean Up Forever Chemical Contamination
While praising the move, campaigners also said that the agency "must require polluters to pay to clean up the entire class of thousands of toxic PFAS chemicals, and it must ban nonessential uses."
Apr 19, 2024
Environmental and public health advocates on Friday welcomed the Biden administration's latest step to tackle "forever chemicals," a new Superfund rule that "will help ensure that polluters pay to clean up their contamination" across the country.
"It is time for polluters to pay to clean up the toxic soup they've dumped into the environment," declared Erik D. Olson, senior strategic director for health at the Natural Resources Defense Council. "We all learned in kindergarten that if we make a mess, we should clean it up. The Biden administration's Superfund rule is a big step in the right direction for holding polluters accountable for cleaning up decades of contamination."
Per- and polyfluoroalkyl substances (PFAS)—called forever chemicals because they remain in the human body and environment for long periods—have been used in products including firefighting foam, food packaging, and furniture, and tied to various health issues such as cancers, developmental and immune damage, and heart and liver problems.
"This action, coupled with EPA's recent announcement of limits on PFAS in drinking water, are critical steps in protecting the public."
As part of the Biden administration's "PFAS Strategic Roadmap," the U.S. Environmental Protection Agency (EPA) rule designates perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Superfund law—the Comprehensive Environmental Response, Compensation, and Liability Act.
"President Joe Biden pledged to make PFAS a priority in 2020 as part of the Biden-Harris plan to secure environmental justice. Today the Biden EPA fulfilled this important promise," said Melanie Benesh, vice president for government affairs at the Environmental Working Group (EWG).
David Andrews, EWG's deputy director of investigations and a senior scientist, has led studies that have found that PFAS are potentially harming over 330 species and more than 200 million Americans could have PFOA and PFOS in their tap water.
"For far too long, the unchecked use and disposal of toxic PFAS have wreaked havoc on our planet, contaminating everything from our drinking water to our food supply," he noted. "Urgent action is needed to clean up contaminated sites, eliminate future release of these pollutants, and shield people from additional exposure."
Walter Mugdan, a volunteer with the Environmental Protection Network and the former Superfund director for EPA Region 2, explained that the "landmark action will allow the agency to more strongly address PFAS contamination and expedite cleanups of these toxic forever chemicals while also ensuring that cleanup costs fall on those most responsible—the industrial polluters who continue to manufacture and use them."
"This action, coupled with EPA's recent announcement of limits on PFAS in drinking water, are critical steps in protecting the public from these harmful compounds," added the former official, referencing the first-ever national limits on forever chemicals in drinking water that the agency finalized earlier this month.
As an EWG blog post detailed in anticipation of the new rule earlier this week:
A hazardous substance designation allows the EPA to use money from its Superfund—the EPA's account for addressing this kind of contamination—to quickly jump-start cleanup at a PFOA- or PFOS-polluted site and to recover the costs from the polluters. If a company that contributed to the PFAS contamination problem refuses to cooperate, the EPA can order a cleanup anyway and fine the company if they fail to take action.
[...]
When a chemical is added to the list of hazardous substances, the EPA sets a reportable quantity. Any time a substance is released above that quantity it must be reported. By imposing reportable quantities, the EPA will get immediate information about new PFAS releases and the chance to investigate immediately and, if necessary, take actions to reduce additional exposures. This information is also shared with state or tribal and local emergency authorities, so it can reach communities more quickly.
"For years, communities that have been exposed to these chemicals have been demanding that polluters be held accountable for the harm they have created and to pay for cleanup," Safer States national director Sarah Doll highlighted. "We applaud EPA for taking this step and encourage them to take the next step and list all PFAS under the Superfund law."
Liz Hitchcock, director of Safer Chemicals Healthy Families, the federal policy program of Toxic-Free Future, similarly celebrated the EPA rule, calling it "an important step forward that will go a long way toward holding PFAS polluters accountable and beginning to clean up contaminated sites across the country."
Like Doll, she also stressed that "until we declare the full class of PFAS hazardous and prevent further pollution by ending the use of all PFAS chemicals in common products like food packaging and firefighting gear, communities will continue to pay the price with our health and tax dollars."
Mary Grant, the Public Water for All campaign director at Food & Water Watch, agreed that further action is necessary.
"Chemical companies have attempted to hide what they have long known about the dangers of PFAS, creating a widespread public health crisis in the process," Grant emphasized. "These polluters must absolutely be held accountable to pay to clean up their toxic mess."
"Today's new rules are a necessary and important step to jump start the cleanup process for two types of PFAS," she said. "While we thank the EPA for finalizing these rules, much more is necessary: The EPA must require polluters to pay to clean up the entire class of thousands of toxic PFAS chemicals, and it must ban nonessential uses of PFAS to stop the pollution in the first place."
Noting that it's not just the EPA considering forever chemicals policies, Grant called on Congress to "reject various legislative proposals to exempt for-profit companies, including the water and sewer privatization industry, from being held accountable to pay to clean up PFAS."
"It is an outrageous hypocrisy that large for-profit water corporations seek to privatize municipal water and sewer systems by touting themselves as a solution to PFAS contamination, and yet they want to carve themselves out of accountability for cleanup costs," she argued. "No corporation should have free rein to pollute."
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‘Climate Superfund’ Laws Could Make Big Oil Clean Up Its Own Messes
If a chemical company pollutes a site, the superfund law has been a way to make it pay for the remediation—so if Vermont’s flooding cost its taxpayers $2.5 billion to repair, why should they be on the hook?
Mar 17, 2024
One prong of the climate fight involves installing so much renewable energy that fossil fuel use actually declines dramatically—a few places are finally showing that’s possible, like sunny Germany which last week said emissions in 2023 dropped more than 10%.
But if that’s going to happen everywhere, and fast enough, it’s going to require the other prong: holding back the fossil fuel industry. The problem is that the politics of oil-producing countries don’t allow it—that’s why the Inflation Reduction Act was all carrots and no sticks. And it’s not just D.C.—in President Luiz Inácio Lula da Silva’s progressive Brazil the national oil company, already Exxon-sized, said last week it plans on outproducing all its peers except Saudi Arabia and Iran by 2035.
So you need a mechanism for places where there is no oil in the ground to inflict some hurt on Big Oil—and get some justice at the same time. Like, Vermont. And New York, and Maryland, and Massachusetts.
“Climate superfund” laws that treat disasters like Vermont’s summer flooding as if they were a toxic dump whose cleanup can be charged to the corporation that caused them.
In a just world, Big Oil would be criminally prosecuted, since investigative reporting has made it abundantly clear that it knew what it was doing (Aaron Regunberg and David Arkush last week laid out an excellent argument as to why these companies could be charged with homicide). In civil court, jurisdictions can simply sue the fossil fuel industry, and that’s actually been happening more and more often (on Wednesday a Belgian farmer sued French energy giant Total for making his life harder). Suits like that—many premised on the fact that Big Oil clearly knew about the dangers they were causing—are wending their way through the American courts, but our justice system is a) slow and b) bent in the direction of the powerful.
So legislators are opening up another front—“climate superfund” laws that treat disasters like Vermont’s summer flooding as if they were a toxic dump whose cleanup can be charged to the corporation that caused them. That would have been hard even a few years ago, but “climate attribution” science is now robust: It’s increasingly easy to prove that absent global warming we wouldn’t have the endless downpours, droughts, or fires. If a chemical company pollutes a site, the superfund law has been a way to make it pay for the remediation—so if Vermont’s flooding cost its taxpayers $2.5 billion to repair, why should they be on the hook?
I’m talking about Vermont because it might be the first state to adopt such a law, as it was the first to abolish slavery or allow civil unions—the legislature and the governor will decide in the next few weeks. And I’m talking about it because I live here, in a town that is struggling to pay for the repairs to its roads after last summer’s record flooding. We heard the sobering litany at town meeting earlier this month; every culvert makes it that much harder to keep our school open. New York is also close to passing such a law, and perhaps Maryland and Massachusetts, as Katie Meyers pointed out in Grist recently—all of them states without significant hydrocarbon production, and all of them states with a lot of climate damage.
Campaigners led by the Vermont Public Research Interest Group (VPRIG) launched the campaign last summer, accompanied by a 20-foot-long inflatable pig. VPIRG’s executive director Paul Burns, and Lauren Hierl, a member of the selectboard in flood-devastated Montpelier, explained the logic in an oped:
The biggest oil companies in the world made more than $200 billion in profits last year, while Vermonters were forced to pay record prices at the pump—and got stuck with the costs of climate change cleanup in our communities. That shouldn’t be the case. Big Oil knowingly made a mess of the climate. They should help pay to clean it up.
It’s a lesson we all learned in kindergarten: If you make a mess, you clean it up.
The argument has obviously appealed to legislators. Here’s the state’s news website, VTDigger, describing one of the more conservative Democrats:
Sen. Dick Sears, D-Bennington, who chairs the Senate Judiciary Committee, said he would have “absolutely opposed” such a bill 20 years ago. Chemical contamination in the Bennington area, which has permanently altered the lives of some of his constituents, changed his mind.
“Who’s going to pay for the damage done?” Sears said. “Is it going to be the taxpayer? Is it going to be the homeowner or the small business? Or is it going to be the company that contributed to the problem? I say it should be the company that contributed to the problem.”
It will be fascinating to see what the state’s governor, Phil Scott, does with the bill. He is a Republican, but a remnant one, harkening back to the state’s Yankee past. (For a hundred years until the 1960s Vermont was the most reliably GOP state in America). He brought the state through Covid-19 with fewer deaths per capita, and less division, than any other; and since he’s a contractor by profession he understands viscerally how much it costs to repair a road or rebuild a bridge. If he signed this bill, he’d be reflecting the clear consensus of the state’s voters. And the great marker of those Yankee Republicans was frugality—cheapness, but the good kind. It’s hard to imagine that he wants Vermont taxpayers on the hook here.
The oil industry (in between insisting that all of this is a plot by the Rockefellers) has hinted that paying these damages could raise prices for consumers, but that’s silly—the price of oil is set on a world market. And they’ve of course promised to go to court if they are charged for their damage. Vermont’s got good lawyers—it’s got one of the best environmental law schools in the nation. And New York State has lawyers upon lawyers, as Donald Trump is finding out. Massachusetts governor Maura Healy used to be AG, and she’s taken on big oil in the past. It’s a fight, but a winnable one.
Yes, it would be best to do this at the federal level (and Vermont’s Senators Bernie Sanders and Peter Welch have introduced legislation to do just that). But the Senate filibuster means that oil states will have enough clout to block those laws, at least while they could still do some good. So for a while it’s going to be a coalition of the oil-less (you can ask your state to get involved here).
It’s been a great blessing to Vermont that there’s nothing much of value beneath the soil (well, granite, but a few quarries are enough to produce an eternity of tombstones). And now that geological fact may prove to be of great value to the planet.
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'Unprecedented Assault': Republican Bills Would Create Loopholes for PFAS Polluters
The bills would create a "slippery slope" that would weaken the Superfund law as more industries seek liability protection for releasing more toxins, the Environmental Working Group warned.
Jun 26, 2023
Five new bills being considered by Congress this session could help industry find a way out of cleaning up dangerous "forever chemicals," warns the Environmental Working Group.
The bills, introduced by Sens. Cynthia Lummis (R-Wyo.) and John Boozman (R-Ark.) May 4, would protect five key sectors from liability if the Environmental Protection Agency (EPA) moves forward with labeling certain per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Superfund law: water utilities, landfills, agriculture, airports, and fire training facilities.
"But far more than even these significant loopholes is at stake," Melanie Benesh, vice president for government affairs at the Environmental Working Group (EWG), said. "Their bill would open the door to even more loopholes for companies that have used PFAS or other hazardous substances, making it much harder to clean up contaminated communities."
"Their proposal would be an unprecedented assault on one of our benchmark environmental laws and open the door to similar loopholes for everything from PCBs to dioxin."
PFAS are a class of widely used chemicals found in everything from firefighting foam to nonstick cookware. They are called forever chemicals because they do not break down easily in the environment, and they have spread to contaminate the drinking water of potentially more than 200 million Americans. A growing body of research links them to a host of health threats including cancer, immune suppression, and reproductive or developmental problems.
In recent years, regulators at the state and federal levels have taken steps to limit the spread of PFAS in the environment and clean up what's already there. To that end, EPA proposed listing two PFAS—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)—as hazardous substances under the Superfund law, officially the Comprehensive Environmental Response, Compensation, and Liability Act, in August 2022.
Such a listing would trigger reportings of large releases of PFOA and PFOS and enable the EPA to require a cleanup and, in some cases, demand the polluter pay for it. Green groups at the time, including EWG, praised the move as historic, but argued the federal government could go further.
Now, EWG says Lummis and Boozman's bills would not only weaken this initial attempt to regulate PFAS, but the strength of the Superfund law all together.
"More than PFOA and PFOS are at stake," Benesh wrote for EWG's website. "Since passage of the Superfund law, Congress has never created the kind of exemptions proposed by Lummis and Boozman. Their proposal would be an unprecedented assault on one of our benchmark environmental laws and open the door to similar loopholes for everything from PCBs to dioxin."
In a statement, Lummis and Boozman argued that their bills would protect sectors that either did not contribute to PFAS contamination or were required to use substances containing PFAS.
"There is no doubt we need to consider the environmental impacts of PFAS chemicals but suing entities who did not contribute to the contamination is overkill, especially considering some of these entities, such as ranches and water facilities, are just downstream receivers," Lummis said.
However, EWG argues that these extra liability protections are not necessary.
"The EPA already has leeway over which polluters it holds responsible for cleanup," Benesh observed. "The agency has successfully used this discretion for over 40 years to ensure polluters pay the lion's share of the cleanup under Superfund."
In this case, the EPA has already promised to focus on manufacturers and government facilities rather than water utilities, farmers, fire departments, airports, or landfills. It also tends to settle quickly with innocent parties, which then protects them from being sued by outside groups.
What's more, the bills would act as a "slippery slope," as Benesh explained:
The Lummis-Boozman bills apply to just five sympathetic sectors. But those aren't the only ones clamoring for an escape from liability.
For example, when Congress voted on the PFAS Action Act in 2021, Republicans offered amendments exempting medical devices, semiconductors, lithium batteries, solar panels, wind turbines, pipeline safety equipment, and chlorine production from Superfund. Now, if the Senate gives loopholes to sectors like water utilities and farmers, these other polluters will only be more emboldened to ask again for their own loopholes.
Benesh said it was important to guard the Superfund law against a death by a thousand industry papercuts.
"We must protect Superfund to ensure contaminated communities get the cleanup they need and deserve," Benesh wrote.
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