The U.S. EPA designated two types of "forever chemicals" as hazardous substances, a long-awaited move meant to hold polluters accountable for the cost of removing so-called PFAs from the environment. The agency, however, clarified that it does not intend to pursue farms who spread biosolid fertilizer on their fields.
The designation under the federal Superfund law — also known as the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA — is targeted at manufacturers and other entities who "significantly significantly contributed to the release of PFAS into the environment," according to an EPA memorandum. Perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) are “widely used” PFAS that have been linked to cancer, immune and developmental issues and other health impacts, the EPA said.
“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,” said EPA Administrator Michael Regan in a news release.
"Forever chemicals" can enter farms through contaminated water or air, but they can also infiltrate fields through the spreading of biosolid fertilizer. Biosolids, a nutrient-rich sludge that is a byproduct from the wastewater treatment process, can contain PFAs, and they've been linked to the chemicals' presence in crops and livestock.
Under the new rule, releases of the two per- and polyfluoroalkyl substances that meet or exceed one pound per 24-hour period will have to be immediately reported to the agency’s National Response Center or a related state or tribal agency. Federal entities that transfer or sell their property must notify officials if they have stored, released or disposed of PFOA or PFOS on the property and certify they have cleaned up related contamination, according to the new rule.
The EPA also issued a separate enforcement discretion policy meant to make clear that the agency will focus enforcement on PFAS manufacturers or certain federal and industrial facilities that are the main drivers of pollution.
Agriculture groups, however, say the rule as written doesn't go far enough to shield farmers from liability. Farmers do not knowingly spread PFAs, American Farm Bureau Federation President Zippy Duvall said, and they should not be held responsible when these chemicals are found on their premises.
"We acknowledge that EPA is saying it does not want farmers and ranchers to be penalized for a situation they did not create," Duvall said in a statement, "but without those assurances being expressly written into the rule, future enforcement is uncertain."
Environmental groups such as the Environmental Working Group have applauded the EPA’s intent to list PFOS and PFOA as hazardous substances, saying the designation will help hold polluters accountable, especially in communities considered environmental justice neighborhoods already overburdened by pollution.
EWG has spoken out against the waste industry’s request for passive receiver protections, saying it could create a loophole for major polluters.
Melanie Benesh, vice president of government affairs at EWG, said in an interview prior to the EPA’s announcement that the agency isn’t likely to target the waste industry, in part because of much more major polluters that are likely on its enforcement priority list.
One of those major polluters could include the U.S. Department of Defense due to its notable use of aqueous film-forming foam, she said. PFAS has been used in AFFF for decades, and runoff from the fire-suppressing foam has been known to migrate into soil and groundwater. In January, the DOD said it was working with a range of PFAS mitigation companies to scale its cleanup efforts.
The hazardous substance designation news comes just a week after the EPA set final drinking water standards for multiple types of PFAS, which many landfill operators say they support despite potential impacts to how they manage leachate or interact with wastewater treatment facilities. The agency also released updated interim guidance on PFAS destruction and disposal through a range of technologies.
