ReMA seeks review of EPA’s designation of PFOA and PFOS as CERCLA hazardous substances

The Recycled Materials Association (ReMA), Washington, has filed a petition with the U.S. Court of Appeals for the D.C. Circuit seeking review of the Environmental Protection Agency’s (EPA’s) Final Rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or Superfund. PFOA and PFOS are two chemical substances that fall under the larger class of per- and polyfluoroalkyl substances (PFAS).

On April 19, the EPA announced it was designating PFOA and PFOS as CERCLA hazardous substances. Information regarding the rulemaking is available here from the Agency's Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances.

That EPA ruling followed its Aug, 17, 2023, announcement of a National Enforcement and Compliance Initiative (NECI) to address exposure to PFAS. The EPA says NECIs are intended to focus on the most serious and widespread environmental problems facing the United States noting the toxicity and persistence of PFAS chemicals and the breadth and scope of PFAS contamination throughout the country.

In announcing the filing of its petition, ReMA says PFAS have been introduced into products and the environment by chemical and product manufacturers for more than 80 years, resulting in the potential for these substances to also be in products that enter the recycling stream. Thus, the designation of these substances under CERCLA will impose significant liabilities for recyclers even though the industry does not intentionally purchase, generate, transport or use PFOA or PFOS in its recycling processes, the association continues. The designation also could significantly undermine recycled materials use, resulting in higher global carbon emissions and greater harvesting of scarce natural resources.

Given their widespread nature, PFAS could be found in materials and products that recycled materials companies process into feedstock for sustainable manufacturing.

“Recycling is essential to achieving global environmental goals for reducing carbon emissions and decreasing our need to extract scarce natural resources,” ReMA President Robin Wiener says. “By labeling and regulating these chemicals as hazardous substances—which would potentially threaten recyclers’ ability to process products containing them—the EPA is potentially putting those environmental benefits at risk.

“The recycled materials industry plays a pivotal role in helping the nation source more materials locally and sustainably, making our supply chain more resilient, our economy stronger and our planet more sustainable. It should not be stopped from playing this critical role."

When the EPA proposed designating PFOA and PFOS as hazardous substances under CERCLA in 2022, the Solid Waste Association of North America, Silver Spring, Maryland, and the National Waste & Recycling Association, Arlington, Virginia, voiced their concerns that PFAS regulation under CERCLA would assign environmental cleanup liability to essential public services and their customers.

Although the EPA had indicated it has discretion over enforcement to avoid going after passive receivers, the associations said that would not prevent manufacturers and heavy users of PFAS from bringing claims for contribution against landfills and others.