EPA Progresses Plans for Designating PFAS as Superfund Chemicals; ILTA State-level Tracker Format Changed

Recent proposed federal actions related to PFAS restrictions have led to increased interactions between Federal agencies and other groups, including collaborative efforts between the EPA and industry and tension between the U.S. Department of Defense (DOD) and individual states.

EPA Activity

The EPA recently announced plans to designate two PFAS chemicals (PFOA and PFOS, both found in AFFF) as “hazardous substances” subject to Superfund regulations. This would be the first time the EPA has designated any PFAS under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), and would hold emitters of PFAS financially liable for cleanup. The proposed rulemaking is expected to be released by EPA in the coming weeks and open for public comments.

Industry groups that use AFFF are seeking liability relief from the proposed superfund designation, including the ILTA, which submitted a letter on February 23 to Carlton Waterhouse, the EPA Deputy Assistant Administrator for the Office of Land & Emergency Management. This letter encourages “a safe, strategic, well-managed transition to fluorine-free or PFAS-free, firefighting foams, while ensuring that the safety of firefighters, our workers, and our communities is not compromised” and emphasizes the need for replacement foams and the prioritization of safety for the employees ILTA members and their communities.

U.S. Department of Defense Activity

 The DOD announced that state drinking water standards may be used by the military as the cleanup levels when cleaning Superfund sites but did not confirm that these standards will always be followed. Not every state has passed state-level drinking water standards, but when they are passed, the maximum contaminant level for PFAS are generally lower than the EPA’s drinking water advisory and often include PFAS which are not included in the EPA’s drinking water advisory. There has been conflict previously between the DOD’s efforts to clean up PFAS contamination and individual states; recently the DOD has argued that they are not subject to New Mexico’s state-issued permitting requirements because PFAS is not listed as a “hazardous waste”.

State PFAS Legislation

State-level updates related to the transition away from AFFF will continue to be provided in the PFAS tracker on the ILTA website. We are excited to share that the structure of the tracker has been updated to aid searches for specific legislation. All laws can now be searched by state, type of legislation, and date of the last update. If you have questions or comments related to the functionality of the tracker, please contact ILTA.