Read the full article by E.A. Crunden and Hannah Northey (E&E News)
“The Biden administration’s ambitions to crack down on ‘forever chemicals’ — touted as an administration priority — are facing headwinds from key industries that say they could be unfairly punished and held liable for contamination they did not create.
Members of the water and waste sectors are ramping up pressure on Congress and EPA to shield them from an upcoming proposal as the agency makes progress on addressing PFAS contamination. Linked to a variety of health impacts like cancer, the notorious family of chemicals are widespread throughout commerce, leading to their persistence in both water and waste utilities.
The industries say they are ‘passive receivers’ of per- and polyfluoroalkyl substances and did not create the chemicals, which are used in everything from nonstick pans and dental floss to industrial firefighting foam. But they could soon face liability for PFAS contamination, whether they intentionally caused the problem or not.
‘It’s a brave new world,’ said Emily Lamond, an environmental attorney with the law firm Cole Schotz. ‘This is one of those watershed moments in environmental law.’
Last fall, EPA Administrator Michael Regan announced a sprawling ‘road map’ to clamp down on PFAS through multiple avenues, including drinking water rules and Superfund law (Greenwire, Oct. 18, 2021).
Regulations under the Comprehensive Environmental Response, Compensation and Liability Act, or Superfund law, have drawn particular attention. That statute oversees cleanup of the nation’s most contaminated sites. EPA has said it plans to propose that both PFOA and PFOS, the most well studied of the chemicals, be listed as hazardous substances under CERCLA. The designation, expected to be finalized in 2023, would have major implications, including applying broad notification requirements for a wide array of facilities when chemicals are released in certain amounts.
Other provisions would see EPA able to sue for cost recovery and recoup expenses where a responsible party can be found. And states that automatically adopt EPA’s hazardous substances as their own would also see an expansion in their enforcement powers.
That has set off alarm bells for business interests. The chemical industry has long been in vehement opposition to many PFAS regulations, which directly implicate those companies. But other sectors say they are being unfairly targeted.
‘It’s very concerning for the solid waste industry,’ said David Biderman, executive director and CEO of the Solid Waste Association of North America, or SWANA. ‘And local governments should be concerned as well, because their costs will go up.’
EPA is aware of those concerns. A spokesperson said via email that the agency ‘does not have authority to provide liability protection to particular entities’ but that the Office of Land and Emergency Management is looking into equity and settlement tools.”…