By ANI FREEDMAN, InDepthNH.org
On April 19, the EPA announced that two widely used PFAS chemicals would be designated as hazardous substances under the Superfund Law—another substantial step to combat widespread health and environmental impacts of forever chemicals, soon after the EPA’s announcement of new PFAS drinking water standards.
New Hampshire’s own infamously PFAS-contaminated sites, Coakley Landfill and the former Pease Air Force Base, both outside of Portsmouth, fall under the definition of Superfund sites, or contaminated sites that are under the EPA’s oversight. With the EPA’s new ruling, the responsible polluters at each site will face more pressure from the EPA to uphold the Superfund standards, also known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Mindi Messmer, environmental scientist and advocate, has been waiting for this action from the EPA for a long time. She lives near the Coakley Landfill and Pease Air Force Base and has long spoken out about the need for accountability of known PFAS polluters.
She’s hoping this new rule will bring about change, especially at Coakley Landfill whose cleanup Messmer thinks has been egregiously slow. As for Pease, the EPA’s official site states the Air Force has completed cleanup at Pease after extensive usage of PFAS-containing firefighting foam in training prior to its closure in 1991, but are continuing “to monitor progress until cleanup goals are met.”
“Up until now, the EPA said they couldn’t compel a polluter to address PFAS,” Messmer pointed out. Now, she said, “They can enforce that these polluters have to clean up to address PFOA and PFOS pollution.”
The new classification of two chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), under Superfund enables the EPA to compel polluters to pay for or conduct investigations and cleanup in cases of significant PFAS contamination. It would effectively pass the burden from taxpayers to responsible polluters while increasing accountability and transparency in cases of PFAS pollution.
Before the CERCLA designation of these two PFAS chemicals, these Superfund sites cleanup costs were directly imposed on the EPA and taxpayers, the EPA press release explained. But with this ruling, the EPA says the cost burden of CERCLA response will be shifted to what they call “potentially responsible parties.”
The rule targets “parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.” In the case of Coakley Landfill and Pease, the responsible parties would be Coakley Landfill Group and the United States Air Force, Messmer said.
Regarding the Pease Air Force Base, the EPA told InDepthNH.org in an email that the Air Force is implementing a base-wide PFAS Remedial Investigation, while continuing to treat groundwater for PFAS pursuant to a Safe Drinking Water Act Order. Furthermore, the EPA wrote, the Air Force committed to its 1990 CERCLA 120 agreement with New Hampshire and EPA to investigate and clean up hazardous substances, pollutants, and contaminants which applied to PFOA/PFOS as pollutant and contaminants, before the recent CERCLA designation as a hazardous substance.
“Thus, for purposes of the CERCLA cleanup, the Air Force has already been responding to PFAS as appropriate,” the EPA wrote.
As for Coakley Landfill, the EPA previously did not have as much authority in forcing the group to clean up the site without state or national surface water quality standards or the designation of these chemicals as hazardous substances, Messmer explained. What progressed the cleanup at Coakley Landfill in particular was New Hampshire’s own drinking water standards of four PFAS chemicals, Messmer said, but since then progress has been sluggish at the site.
Messmer has been concerned about the PFAS contamination at the Coakley Landfill in particular spreading into the nearby wetlands and bodies of water. Now, Messmer is hopeful the EPA will have the authority to stop the polluted substances from running off into the surrounding areas.
In an email to InDepthNH.org, the EPA stated that through CERCLA, they identify the responsible polluters and negotiate “with them to do the cleanup themselves or to pay for the cleanup done by another party (e.g., EPA, states, or other parties).” However, if they cannot reach an agreement with the responsible party, then “the Agency can order the PRP to do the work or have the Department of Justice require the PRP to do the work through the federal court system.”
After extensive research revealing the evidence of the chemicals’ harm to the body, especially as concentrations accumulate in humans and the environment over time with continual exposure, the EPA was compelled to make the hazardous substance classification final, the EPA’s press release explained.
“Exposure to per-and polyfluoroalkyl substances (PFAS) has been linked to cancers, impacts to the liver and heart, and immune and developmental damage to infants and children,” the EPA wrote in its press release.
“This confirms what we’ve been saying for years,” Messmer said, who has studied cancer rates around the polluted areas.
In January, the Agency for Toxic Substances and Disease Registry at the CDC released part of a health study of human health effects of Per- and Polyfluoroalkyl Substances (PFAS) exposure through drinking contaminated water around the Pease International Tradeport, located near the Air Force Base. It found that adults and children had significantly higher concentrations of PFOS, PFOA, PFNA, and PFHxS and a multitude of health conditions, with high cholesterol being the most frequently reported of the participating population.
“It should give people assurance who have been concerned about high cancer rates around these Superfund sites, not just in New Hampshire but across the country,” Messmer said. “Our concern in terms of cancer and chronic disease has been validated. There is now the tool that EPA needs in their tool belt to take action.”
While the state and EPA officially recognize that Coakley Landfill Group and the Air Force are responsible parties for PFAS pollution at their respective sites, the ubiquitous nature of PFAS pollution results in contamination at many sites that do not directly manufacture or utilize PFAS chemicals in their facilities’ activities.
To clarify who exactly would be held responsible under this new rule, the EPA created the PFAS Enforcement Discretion and Settlement Policy Under CERCLA.
In the policy, the EPA clarified that the organization will not hesitate to enforce these rules on federal institutions—which relieved Messmer, who was concerned the Department of Defense would interfere in enforcement at the Pease Base.
But the EPA acknowledged there may be several sites where PFAS contamination is found and they will not be pursuing action against:
(1) Community water systems and publicly owned treatment works (POTWs);
(2) Municipal separate storm sewer systems (MS4s);
(3) Publicly owned/operated municipal solid waste landfills;
(4) Publicly owned airports and local fire departments; and
(5) Farms where biosolids are applied to the land.
In each case, the EPA recognized that these entities are not manufacturers of PFAS nor do they directly use PFAS in their practices, each facility contributes to public benefit in some way, and they cannot equitably pay for CERCLA cleanup or costs in the way responsible polluters can.
For airports and local fire departments in particular, the firefighting foam (aqueous
film forming foam or AFFF) used often contains PFAS chemicals; however, they are legally required to continue using this foam as long as they “follow all applicable regulations governing the use, storage, handling, and disposal of AFFF that contains PFAS” and maintain a “high standard of care to limit the release of PFAS.” Thus, the EPA will not be pursuing action against these sites as they will be for the manufacturers and users of PFAS in industrial processes whose practices lead to PFAS contamination.
Entities are also required to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound within a 24-hour period to the National Response Center, State, Tribal, and local emergency responders, the EPA wrote in the policy.
“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 the press release.
While Messmer was thrilled to hear the news, she still has her guard up.
“It doesn’t mean we can take our foot off the gas in terms of advocacy,” Messmer said. “There will be some laws in place and sometimes no action happens still.”
Messmer doesn’t know how quickly the EPA will pressure responsible parties to act on PFAS cleanup and remediation now that these new rules are in place. To keep the momentum going, she said, advocacy needs to keep pushing for progress.
In an email response, the EPA clarified that “CERCLA is a discretionary statute, and decisions are made on a site-by-site basis based on whether any releases from the site pose unacceptable risk to human health or the environment.” That means there is no definitive timeline for when polluters have to act, but the EPA will be putting pressure on them to comply.
“Timeframes for cleanup are site-specific and depend on the nature of the cleanup,” the EPA wrote.
As for when to know if a site is fully cleaned up, the EPA said that “remedies must protect human health and the environment and attain state and federal environmental standards.” If a site continues having evidence of hazardous substances after the completion of a remedy action, the EPA will conduct five-year-reviews “to ensure that the remedy remains protective.” The EPA has already conducted 5 five-year-reviews at Coakley Landfill.
The EPA also stated that public involvement is a crucial component of PFAS Superfund site cleanup.
“EPA must consider public input on remedial actions before selecting a remedy,” the EPA wrote in an email. “EPA develops ‘community involvement plans’ to provide a framework for public involvement and outreach throughout the remedial process.”
CERCLA also requires a 30-day public comment period for cleanup consent decrees between the government and responsible parties.
Despite her skepticism, Messmer remains optimistic with the new CERCLA hazardous waste classification in place. Not only will this work to hold polluters accountable, but it will also hold the EPA accountable for taking action, she said. She only wishes the EPA would have done this sooner.
“On the one hand it’s very validating, on the other side I wish this would have happened sooner because we could have saved so many people from getting sick or being exposed,” Messmer said. “Why couldn’t we have seen the writing on the wall a long time ago?”
