On Wednesday, the House approved a comprehensive bill that would require the Environmental Protection Agency (EPA) to categorize PFOS (short for perfluorooctanesulfonic acid) and PFOA (short for perfluorooctanoic acid) for what they are: hazardous substances under the Superfund law. This action would augment EPA’s limited authority to investigate and clean up PFOA- and PFOS-contaminated groundwater and soil. Some in the chemical industry and certain members of Congress are making meritless claims about why this designation should not happen, but as a former director of the EPA’s Superfund remedial program, I believe this legislation is long overdue and needed.
PFOA and PFOS belong to a class of toxic compounds used since the 1940s in hundreds of industrial applications ranging from fire-fighting foam and metal plating, to household products. Given their wide usage, PFAS have contaminated our land, air and drinking water across the country. A CDC analysis indicated widespread exposure to these PFAS in the U.S. population: Based on serum samples collected from a representative sample of the general U.S. population greater than 12 years and older, scientists found at least 12 PFAS in the blood serum and four PFAS in the serum of nearly all of the people tested.
Although EPA issued health advisories in 2016 for PFOA and PFOS under the Safe Drinking Water Act, they remain unregulated. Meanwhile, scientific studies show that even minimal exposure can result in developmental defects to the fetus or to infants while breastfeeding, in addition to cancers and harms to the liver and thyroid.
Yet, some lawmakers and industry lobbyists have inaccurately claimed that designating PFOA and PFOS as hazardous substances would result in bans on PFAS-containing products like medical devices and personal protective equipment for law enforcement and military. But designating a substance as “hazardous” does not create a ban. There are thousands of “hazardous substances” under Superfund and most of them are still in commerce. A few examples include arsenic, zinc and lead. All remain widely used in industrial and commercial products.
PFOA and PFOS manufacturing in the U.S. was phased out as part of a 2006 agreement between EPA and industry. And while these compounds may be imported, their uses are governed under the Toxic Substances Control Act (TSCA) and other laws — not Superfund. Thus, a hazardous substance designation has no effect on industries that import these chemicals for things like coating for automotive parts or electronics. Further, the Food and Drug Administration (FDA) regulates the use of PFAS substances as part of food packaging or medical devices — not EPA. TSCA specially excludes any food, food additive, drug, cosmetic or device regulated by the Federal Food, Drug and Cosmetic Act from the definition of chemical substance under TSCA.
What the PFAS Action Act of 2021 does do is fix several voids that currently exist. If PFOA and PFOS are designated as hazardous substances, polluters would be required to report its environmental releases, enhancing protections for communities. EPA would also have authority to order industrial polluters to clean up contaminated sites — so communities would no longer have to wait for investigations and cleanups and EPA could hold polluters accountable.
Most importantly, it would allow communities and the federal government to recover funds they spent on cleanups. This is critical because it places the financial burden on those responsible for polluting our communities in the first place, not on taxpayers.
EPA needs the tools to address the PFAS crisis. Congress took a major first step in the right direction, now it is up to the Senate to finish the job. Let’s not misconstrue the Superfund law, and instead, use it to protect public health and the environment.