PFOA and PFOS To be Considered Hazardous Under Superfund Law

Today, the Environmental Protection Agency (EPA) proposed to designate the two most notorious PFAS — PFOA and PFOS — as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law. This designation will create federal standards to spur clean-up of areas most contaminated with PFOA and PFOS, though some states have already implemented their own clean-up laws.

“PFAS,” which stands for per- and polyfluoroalkyl substances, are a class of thousands of what are known as ‘forever chemicals’ that are nondegradable, accumulate in human bodies and the environment, and are extremely toxic, even at minuscule levels.

“It is fair and necessary to hold polluters accountable for contaminating thousands of communities across the country, particularly because companies like 3M and Dupont did so knowingly, and with impunity. We are pleased that EPA is addressing the oldest and most infamous PFAS under the Superfund law,” said Christine Santillana, Earthjustice legislative counsel. “We urge EPA to listen to the communities who have been impacted by PFAS, and not be deterred from finalizing this rule by irrational comments from the polluters who created this public health crisis.”

EPA’s proposal creates new reporting requirements for facilities that release PFOA and PFOS into the environment and will provide a legal basis for holding industries and federal agencies, like the Department of Defense, accountable for contaminating communities. This designation is critical because it ensures polluters are responsible for the financial burden of cleanup costs, which will significantly increase the number of contaminated sites that will be remediated.

“We cannot wait for Congress to act. As we speak, companies continue to manufacture toxic PFAS that are contaminating our air, land, and water. It is imperative that EPA quickly designates thousands of other poisonous PFAS as hazardous under the Superfund law to provide expansive protections for community health through investigations, monitoring, and remediation,” Santillana added.

This proposal comes ten months after EPA released a roadmap to study and bolster PFAS regulations Last year, Congress recognized the importance of designating PFOA and PFOS as hazardous substances and included a Superfund provision in the PFAS Action Act that passed the House, but has not yet been addressed in the Senate. See Earthjustice’s online summary and tracker of EPA’s PFAS roadmap.

PFOA and PFOS, created in the 1940s and used in products like Teflon and firefighting foam, have been largely phased out of production in the United States due to links to cancers and birth defects. But the continued manufacturing of these two toxic chemicals as byproducts presents serious liability threats. Companies like 3M and Dupont manufactured and dumped PFOA and PFOS for much of the 20th century, despite knowing these chemicals were harmful and resulting in widespread drinking water contamination. The military also polluted communities via firefighting foam used extensively during training exercises. More than 95% of the U.S. population has PFAS in their bodies, according to the Centers for Disease Control and Prevention.