Environmentalists are hailing EPA’s decision to freeze and review an 11th-hour proposal by the Trump EPA that dropped a prior commitment to designate two per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Superfund law and instead said the agency would weigh whether they should receive such a designation.
EPA has posted on its PFAS website that it did not publish the Trump administration’s advance notice of proposed rulemaking (ANPRM) -- which EPA announced Jan. 19, just one day before then-President Donald Trump left office. In addition, EPA now says the ANPRM “is undergoing review in accordance with the Regulatory Freeze Pending Review Memorandum that White House Chief of Staff Ronald Klain issued on January 20, 2021."
The ANPRM sought comment on whether EPA should consider a Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) “hazardous substance” designation for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) -- the most studied PFAS -- as well as a “hazardous waste” listing for the two substances under the Resource Conservation & Recovery Act (RCRA).
But the Trump EPA’s last-minute move drew sharp criticism. Betsy Southerland, a former EPA water and waste office official now with the Environmental Protection Network, at the time suggested that the Biden administration “yank” the notice and “issue instead the proposed rule” as EPA career staff originally wrote it in 2019.
The ANPRM showed that Trump officials had retreated from prior commitments to designate the two chemicals as hazardous substances, which would have ensured responsible parties would have to pay for cleanups, Southerland said. The agency’s proposal to designate the chemicals was delayed by more than a year, raising concerns that the Defense Department, fearing it would drive costly cleanups, and industry groups were opposing the measure.
In the end, the ANPRM showed “Wheeler gutted the proposal” for a CERCLA PFAS designation that the agency had drafted in 2019, and “instead rewrote it as an ANPRM simply asking the question about whether these chemicals should be designated hazardous under CERCLA or maybe under RCRA,” Southerland said.
Tom Bruton, a senior scientist with Green Science Policy Institute, which is one of two sets of petitioners who asked the Trump EPA to list PFAS as hazardous waste under RCRA, calls it “good news” that the Biden administration put the ANPRM on pause. He notes that some of the language in the ANPRM seemed to signal that PFAS at cleanup sites was taken care of -- a point he disputes. He backs designations of PFAS under CERCLA and RCRA because EPA needs the leverage to drive cleanups, he says.
Tim Whitehouse, executive director for Public Employees for Environmental Responsibility -- another petitioner seeking RCRA designation of PFAS -- tells Inside EPA that the Biden administration “has moved quickly to make sure it is not locked into bad proposals made by the Trump administration.” He says the ANPRM fell short as it only addressed two of thousands of PFAS known to be dangerous. He says PEER supports the ANPRM’s freeze and says the administration should “take a more comprehensive approach to managing waste streams containing any PFAS.”
And Claudia Polsky, the director of the University of California-Berkeley Environmental Law Clinic -- which represents Green Science Policy Institute and others in their RCRA petition -- tells Inside EPA she hopes to see both a designation under CERCLA of the two chemicals but also a designation of a much larger class of PFAS as hazardous waste under RCRA, which would prompt cradle-to-grave management of PFAS. A RCRA designation would also automatically trigger a CERCLA designation, she says.
She adds that the ANPRM represented two bad outcomes and one good outcome. On the bad side, she said the Trump EPA backpedaled from previous policy commitments to at least designate two PFAS as hazardous substances under CERCLA and it punted all the difficult decision-making about PFAS to the Biden administration “while sending a public signal that the Trump administration actually cared” about the issue. This may have been political cover as the issue has arisen in both red and blue states, she says.
But, she says, one benefit of the ANPRM was that the Biden administration had to make a choice on the matter and early on had to make it a high priority to engage on. -- Suzanne Yohannan (firstname.lastname@example.org)