ACC is strongly opposed to EPA’s proposal to designate PFOA and PFOS as hazardous substances under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). As we have told EPA, the proposal is expensive, ineffective, and unworkable.
But we are not alone in our concerns. In fact, many organizations from a wide range of sectors around the country are asking EPA to reconsider.
Here’s what they are saying:
National Agencies and Organizations
- Airports for America: “A4A respectfully requests that EPA withdraw the Proposed Rule or hold it in abeyance because it is premature and could potentially have enormous and unquantifiable consequences for the aviation industry as well as many other industries that use Aqueous Film Forming Foam, which contains PFAS, for safety reasons.”
- American Farm Bureau Federation: “A closer look at the impact that EPA’s proposal would have on small businesses would likely have demonstrated a significant potential adverse impact on farmers and ranchers. Farmers all over the country could face devastating impacts simply for owning land and creating an agricultural product.”
- American Forest & Paper Association: “We are concerned that the listing of PFOA and PFOS as hazardous substances under CERCLA could have the unintended outcome of impeding or preventing the safe and beneficial use of paper mill residuals.”
- American Public Works Association et al: “CERCLA designation thus would lead to significant cost increases on public service providers and the communities they serve while impeding EPA’s commitments espoused in the agency’s PFAS Strategic Roadmap.”
- American Water Works Association: “AWWA is concerned that the Proposal imposes significant costs and long-term liability on drinking water and domestic sewage treatment facilities and threatens to compound financial burdens on water systems that are, or under a forthcoming rule will be, protecting public health through drinking water treatment of PFOA and PFOS. These burdens will be directly felt by the water systems’ ratepaying customers and felt most acutely by those living in environmental justice communities.”
- Associated General Contractors of America: “EPA has not justified why it seeks to designate a CERCLA hazardous substance by rulemaking (for the first time) instead of using one of its other regulatory authorities and avenues to address PFOA and PFOS.”
- Association of State Drinking Water Administrators: “CERCLA is not the appropriate tool for addressing the widespread PFAS problem.”
- Congressional Fire Services Institute: “Our organizations are concerned that under the proposed rule, fire departments and other fire service entities may be considered Potentially Responsible Parties (PRPs) and as such, would be forced to shoulder the financial burdens of properly remediating sites where their activities may have included the use or storage of AFFF. This would be devastating to fire department budgets and could threaten departments’ abilities to protect their communities. Fire departments today are stretched thin. They are operating on minimal budgets while being asked to respond to more calls than ever for fire, hazardous materials, medical emergencies, and more.”
- International Carwash Association: “The costs that will result from the Proposed [CERCLA] Designation are very significant, and EPA has failed to consider them properly. That EPA has not fully considered the potential cost impacts of the Proposed Designation is evidenced by the almost complete lack of information provided by EPA as to the magnitude and scope of those impacts, including specifically to carwashes.”
- National Association of Chemical Distributors: “Designating PFOA and PFOS as hazardous substances under CERCLA will have numerous unintended consequences. NACD urges EPA to withdraw this proposed rule and undertake a more robust study on the real need for the CERCLA designations, the availability of clean-up and alternative technologies, and the true direct and indirect costs of the CERCLA designations.”
- National Association of Clean Water Agencies: “Due to CERCLA’s expansive definitions and lack of focus on culpability and simply by virtue of the critical public services they provide, clean water agencies will be exposed to extensive liability under CERCLA as potentially responsible parties for PFAS contamination. A truly unprecedented amount of the nation’s water and land area will fall under CERCLA’s contamination purview if EPA categorically designates PFOA and PFOS as CERCLA hazardous substances.”
- National Association of Convenience Stores, et al: “We are concerned, however, about the potential liability issues facing the convenience and fuel retailing industry that could arise from this classification and EPA’s underlying legal authority to introduce these classifications.”
- National Association of Manufacturers: “Because the CERCLA designations proposed are an extremely expansive and all-encompassing regulatory tool, such an approach could quickly sweep in nearly every manufacturing sector, downstream user community and other entities, including municipal water districts and commercial airports, into lengthy and costly litigation for legacy activities well beyond their control. Not only is this unfair, but perhaps more importantly, it will not speed cleanups: it will do the opposite.”
- National Association of Water Companies: “By proceeding under CERCLA with the designation of PFOA and PFOS as hazardous substances rather than acting under other available legal authorities, EPA’s action will have far reaching implications and severe unintended consequences on water systems that have played no role in producing, using, or profiting from PFAS being placed into commerce.”
- National Ground Water Association: “Because of the insufficiency of information on identifying and measuring a release of PFOA and PFOS in the preamble, the current proposal raises more questions about the effects, benefits and costs of the regulation than it answers.”
- Superfund Settlements Project: “The proposal suffers from a number of defects that, should it be finalized, would result in the final rule being arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law….SSP believes that the proposal is flawed and will not result in increased protection of human health and the environment.”
- U.S. Department of Agriculture: “EPA does not plan to complete a risk assessment on biosolids until 2024. Additional research on PFAS and biosolids should be conducted before a broad characterization is made in a national CERCLA designation rule related to PF AS contaminated biosolids and agriculture.”
- U.S. Conference of Mayors: “The Proposed Rule will have severe economic impacts and require significant modifications of public works operations in every community in America to implement and comply, and yet the Agency has not accounted for the cascading regulatory burdens the Proposed Rule will trigger.”
- Water Environment Federation: “EPA’s economic analysis lacks the robustness necessary of a rulemaking having been found to be ‘economically significant’.”
State Agencies and Organizations
- California Association of Sanitation Agencies: “Perhaps the most serious concern in this vein is the prospect that CERCLA designation would immediately trigger CERCLA’s joint, several and strict liability regime. The rulemaking as currently proposed threatens to draw local public water and wastewater agencies into significant third-party litigation or enforcement actions based on de minimis contributions of PFAS to a particular site. That would, in turn, significantly impact local agency ratepayers. This single decision would potentially impose untold costs on the public in the form of litigation expenses.”
- California Farm Bureau: “The proposed designation of PFOA and PFOS as CERCLA hazardous substances overlooks the consequences that would be placed on farmers and ranchers as the owners of contaminated property. The proposed rulemaking fails to fully consider the appropriateness of using CERCLA remedial authority to address the apparent ubiquitous presence of PFAS contamination and how the application of CERCLA’s remedial authority imposes strict liability on agricultural landowners.”
- Colorado Farm Bureau: “This proposed designation woefully neglects consideration of the potential consequences for farmers and ranchers as the owners of contaminated property.”
- Florida Airports Council: “In the case, of airports and seaports located next to surface waters or with the potential of discharging PFOS and PFOA to surface waters due to Federally mandated testing of first-responder equipment, the nationwide costs of a CERCLA or State-led response action to reduce or eliminate these discharges to surface water may be in the tens of billions.”
- Florida Water Environment Association Utility Council: “As currently proposed, this [CERCLA] designation means utilities will face unwarranted liability and legal defense costs at Superfund sites—such as landfills or agricultural sites—and through utility discharges. A designation would also unleash massive potential liability for a host of public and private entities under CERCLA’s joint and several liability scheme. This may significantly delay real estate transactions by private companies, in particular potential investments into brownfield sites with the goal of remediating the property for reuse.”
- Massachusetts Water Resources Authority: “By advancing the Proposed Rule, and the specter of CERCLA liability, EPA is forcing entities like [publicly owned wastewater treatment facilities] to continuously reevaluate their wastewater and residuals disposal options based solely on the virtually unquantifiable indirect effects of EPA’s proposed designation under CERCLA, without the benefit of specific scientific analysis to further inform such options.”
- Michigan Farm Bureau: “CERCLA assigns responsibility for reporting and liability for clean up of contaminated sites not only for generators of hazardous substances but also for people who transport and store or dispose of those substances. Because of this, farmers and agricultural service providers could be caught up in regulation, cost, liability, loss of value of their land and agricultural products, and even loss of their livelihoods for contamination by substances they do not generate, do not use, and of which they are the unwilling or in many cases unknowing recipients.”
- Association of Missouri Clean Water Agencies: “Turning back to the proposal to designate PFOA/PFOS under CERCLA, we urge EPA to specifically address how, if at all, critical public utility practices will be implicated. Again, the stakes are high for local ratepayers, in the hundreds of billions of dollars in terms of PFAS barrier technology and annual operation and maintenance costs for such technologies.”
- New York Farm Bureau: “NYFB believes that EPA’s proposed designation of PFOA and PFOS as CERCLA hazardous substances overlooks the consequences on farmers as the owners of contaminated property….EPA’s proposal to exercise its never before used CERCLA remedial authority to designate PFOA and PFOS as CERCLA hazardous substances to address the ubiquitous contamination of the environment, including agricultural lands, is the wrong tool to deploy at this time.”
- North Carolina Farm Bureau Federation: “Regardless of the EPA's discretion in enforcement while handling remedial actions, a CERLCA designation on a parcel of farmland will result in an inability to sell crops or livestock, and a collapse of land values.”
- North Carolina Water Quality Association: “We are also troubled by the State of EPA’s science regarding PFOA and PFOS - which has been called into question by the September 27, 2022 World Health Organization’s Provisional Guideline Values for PFOA and PFOS of 100 ppt each. Those levels are six orders of magnitude higher than EPA’s Interim Health Advisory Level for PFOA and five orders above EPA’s value for PFOS. We believe it is incumbent on USEPA to address this shocking disparity in health-based levels for these chemicals by the world’s two leading public health agencies before EPA takes any further regulatory action regarding these chemicals. This is especially warranted given the magnitude of costs (likely hundreds of billions of dollars) associated with EPA’s proposed CERCLA designation for PFOA/PFOS.”
- Oklahoma Secretary of Energy and Environment/Dept of Environmental Quality: “EPA’s approach in the proposed rule has the potential to harm sectors and facilities that provide essential daily functions in our communities, such as wastewater treatment facilities and landfills (i.e. facilities which do not generate or use PFAS compounds but which may, in the regular course of business, receive waste or wastewater containing PFAS compounds). Considering the heavy reliance on these facilities for sanitary conditions in our communities, the consequences for public health and safety would be significant if these facilities could no longer remain financially solvent due to the enormous cleanup costs associated with the proposed rule.”
- Pennsylvania Chamber of Business & Industry: “EPA has failed to adequately assess the major costs and impacts for companies and communities – as well as landowners, local governments, and other persons and entities – that would arise from CERCLA designation. A designation would also unleash massive potential liability for a host of public and private entities under CERCLA’s joint and several liability scheme. This may significantly delay real estate transactions by private companies, in particular potential investments into brownfield sites with the goal of remediating the property for reuse.”
- South Dakota Farm Bureau: “Unfortunately, EPA’s proposed designation of PFOA and PFOS as CERCLA hazardous substances overlooks the consequences on farmers and ranchers as the owners of contaminated property. EPA should withdraw this proposed rule as urged by the South Dakota Farm Bureau Federation.”
- Virginia Association of Municipal Wastewater Agencies: “EPA’s Proposed Rule would make [publicly owned treatment works], who act as passive receivers of PFAS chemicals that enter treatment works from customers, potentially liable for CERCLA clean-up costs. This would be devastating to POTWs.”
- Wisconsin Manufacturers & Commerce: “WMC strongly opposes the proposed rule to designate PFOA and PFOS as hazardous substances under CERCLA, and urges the EPA to withdraw the rule. Wisconsin’s chamber supports reasonable, science-based regulations that are protective of public health and the environment. However, designation under CERCLA Section 102(a) is the wrong legal tool to achieve appropriate remediation for these chemicals. It would be expensive, overreaching, and unworkable.”
