EPA lists two PFAS as hazardous, increasing liability for polluters

“Designating these chemicals under our Superfund authority will allow EPA to address more contaminated sites, take earlier action, and expedite cleanups, all while ensuring polluters pay for the costs to clean up pollution threatening the health of communities,” EPA Administrator Michael Regan said in a statement.

The EPA’s action on Friday applies to two widely used PFAS chemicals — perfluorooctanoic acid, known as PFOA, and perfluorooctanesulfonic acid, known as PFOS. The agency said the designation will enable regulators to investigate and force the cleanup of leaks and spills of the chemicals, which have been associated with a range of health issues, including cardiovascular problems, low birth weights and certain cancers.

The move is the latest in a broader set of policies meant to address the prevalence of the human-made chemicals throughout the country. Last week, the EPA finalized the nation’s first drinking water standard for PFAS, the first such update since 1996. Agency officials estimate that the standard will reduce exposure to these chemicals in drinking water for about 100 million Americans.

“The PFAS Superfund listing and the drinking water standard are kind of a one-two punch to address the PFAS problem, and they are two of the most significant public health steps that the Biden administration has taken,” said Erik Olson, a senior strategic director at the Natural Resources Defense Council, an environmental group.

The listing, Olson added, “will help force the polluters themselves to pay for the contamination, rather than those who are most affected by it.”

The rule could benefit hundreds of affected families and communities around the country, such as those along the Cape Fear River in North Carolina that have been grappling with PFAS contamination for years. The Donovan family is one of those.

Three years after moving to Leland, N.C., David Donovan began losing his vision. Doctors discovered a brain tumor in his skull and performed an emergency procedure to remove it.

His wife, Emily Donovan, who co-founded a grass-roots advocacy group called Clean Cape Fear, wonders if tap water was to blame. For more than 30 years, a chemical plant outside Fayetteville released PFAS chemicals into the Cape Fear River, contaminating the drinking water of roughly 500,000 people.

She worries that her 14-year-old son and daughter twins grew up drinking tap water, which her pediatrician encouraged over sugary juices and soft drinks. While David has recovered his vision and the kids appear healthy, recent testing revealed that all the family members have elevated levels of PFAS in their blood.

“Our pediatrician told us the best thing we could do for our children was teach them to love water, and that’s what we did,” Donovan said through tears. “We thought we were doing the right thing.”

The rule released Friday comes as part of the Biden administration’s multifaceted crackdown on PFAS, one that many advocates argue should have happened decades ago. As early as the 1960s, research conducted by the manufacturing giants 3M and DuPont revealed that PFAS could pose health risks for lab animals and humans.

Today, the federal government has only begun to grapple with these risks, which have become remarkably pervasive. Nearly every American has measurable amounts of PFAS in his or her blood, and close to half of the nation’s tap water has one or more types of PFAS, according to an estimate by the U.S. Geological Survey.

PFAS are used to make a variety of everyday products, including nonstick cookware, water-repellent clothing, artificial turf, food packaging and firefighting foam. They are often called “forever chemicals” because they do not break down in the environment.

For decades, manufacturers prized PFAS for their durability. Because the carbon-fluorine bond is one of the strongest, these chemicals are resistant to water, grease and heat. They keep food from sticking to packaging or cookware, and they prevent stains from marking clothes or carpets.

Yet that resilience has proved dangerous. The International Agency for Research on Cancer, part of the World Health Organization, has classified PFOA as “carcinogenic” and PFOS as “possibly carcinogenic.”

In theory, the Superfund listing for PFOA and PFOS will make it easier for the government to force polluters to clean up contaminated sites. In practice, however, it could also inspire fierce legal battles over who should foot the bill for the damage these chemicals have inflicted.

Major manufacturers reached an agreement with the EPA in 2006 to phase out production of PFOA and PFOS in the United States. But the persistent chemicals have continued to contaminate U.S. public drinking water systems, leading to numerous lawsuits and multibillion-dollar settlements.

“The corporations that produced and used these chemicals and allowed them to invade our lakes, streams and aquifers made billions, even trillions, of dollars of profits as a result,” Robert F. Powelson, president of the National Association of Water Companies, said in a statement. “But it is water and wastewater systems that are on the front lines of cleaning up the contamination, leaving water customers on the hook for paying tens of billions of dollars to remove the toxins from our water.”

In 2022, Minnesota-based 3M pledged to stop all PFAS manufacturing by the end of 2025. The following year, the company agreed to pay $10.3 billion as part of a sweeping settlement with U.S. cities and towns that detected PFAS in their water supplies.

The EPA’s latest rule could result in an additional $2.9 billion in liabilities for 3M and $4.8 billion in liabilities for three DuPont entities, analysts with the firm Capstone wrote in a recent note to clients.

“Especially if there’s litigation, it could take at least five to 10 years to determine liability for each cleanup,” said Gianna Kinsman, a vice president on Capstone’s energy team. “You could see it take a couple of decades even.”

3M spokesman Sean Lynch said in a statement that the company “is committed to compliance with relevant laws and regulations, and we will continue to work to address legacy PFAS issues.” He added that 3M is on schedule to meet its target to end all PFAS manufacturing by the end of 2025.

A spokesman for DuPont declined to comment for this story.

Tom Flanagin, a spokesman for the American Chemistry Council, said the trade group “strongly” opposes the EPA’s decision to list PFOA and PFOS as hazardous substances under the Superfund law, dubbed the Comprehensive Environmental Response, Compensation and Liability Act.

“CERCLA is an expensive, ineffective, and unworkable means to achieve remediation for these chemicals,” Flanagin said in an emailed statement. The law, he added, is “fraught with unintended consequences, and will likely result in extensive, unnecessary delays for cleanups. There are more effective and timely means to address potential site remediation through existing regulatory processes.”

In addition to corporations, the federal government — and ultimately taxpayers — could also face significant liabilities. For more than a half-century, the Defense Department used a PFAS-laced firefighting foam to quickly extinguish fires and prevent them from reigniting at military bases nationwide.

The communities near those military bases are now some of the most contaminated sites in the country. It is unclear whether the federal government will shoulder the full cost of cleaning up those sites, or whether the Pentagon will seek to recoup some costs from chemical makers, said Rainer Lohmann, a professor who leads the Superfund Research Center at the University of Rhode Island.

“I think that’s the biggest unknown,” Lohmann said.

Pentagon spokesman Robert L. Ditchey II said in an email that “this final rulemaking will not change DoD’s ongoing PFAS investigations and cleanup actions.” He said that as of December, the Pentagon had identified 715 military installations that required an assessment for PFAS contamination, and after an initial assessment, 574 installations are proceeding to the next step in the Superfund cleanup process.

Ditchey referred questions about recouping the cleanup costs to the Justice Department. In court filings, Justice Department lawyers have argued that the Pentagon is immune from 27 lawsuits over the contamination filed by local and state governments, businesses and property owners.

The demographics of communities affected by PFAS contamination vary from state to state. But a recent analysis by the Natural Resources Defense Council found that PFAS pollution is more prevalent in disadvantaged communities in California, potentially affecting up to 8.9 million people in these neighborhoods.

Kelly Moser, a senior attorney and leader of the Southern Environmental Law Center’s Water Program, said the EPA’s use of the Superfund law to address the problem is critical, since it is the country’s bedrock law governing the most contaminated sites.

“And some of the worst of the worst contaminated sites these days contain PFAS,” she said.

But perhaps just as important, Moser said, is that even as it could take years for the government to assess tainted areas and assign responsibility, the new rules could serve as a deterrent for ongoing pollution.

“Although Superfund sites are not going to pop up overnight, the threat of them will. It is an incentive for industries to start acting responsibly,” she said. “What EPA is making clear with these rules is these chemicals are extremely harmful to human health, and people must be protected from them.”