Cleanup cost for 2 'forever chemicals' must be picked up by manufacturers, new federal rule says

The U.S. Environmental Protection Agency has designated two “forever chemicals” as hazardous substances under the Superfund law, a move lauded by environmentalists, but some Long Island water providers fear it could leave them further on the hook for clean-up costs.

The Biden administration on Friday announced the new designation for PFOS and PFOA, the most widely used and studied chemicals in the class known as PFAS, a move it said will ensure polluters pay to clean up contamination.

It requires entities to report releases of the chemicals greater than one pound within 24 hours to the National Response Center and to local emergency responders. The federal government can then compel those entities to pay for subsequent investigation and cleanup.

“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,” EPA Administrator Michael S. Regan said in a statement.

The compounds, used in a variety of water-resistant products, have been linked to cancers, and immune and developmental damage to infants and children, according to the EPA. They are pervasive in the environment, commonly found in Long Island groundwater and can be detected in the blood of almost every American.

The American Chemistry Council, which represents the chemical industry, in a statement said it strongly opposes the new designation and said the EPA relied on flawed scientific data in its justification.

Chris Netram managing vice president of policy for the National Association of Manufacturers, an industry group, in a statement said the regulations could hamper business and that the compounds are a necessary ingredient in many products.

“Designating these compounds as hazardous substances is a blunt, overreaching decision that will make it harder for our industry to create innovative products and jobs,” he said.

The EPA earlier this month issued new restrictions requiring water providers to remove the compounds from drinking water that are stricter than New York State standards.

New York State in 2020 set a limit of 10 parts per trillion for PFOS and PFOA, two of the most common forever chemicals, and most Long Island water providers already have equipment in place to meet that limit. The EPA is setting maximum contaminant levels at 4 parts per trillion for each of those compounds, the lowest levels the agency said are feasible for effective implementation.

The chemicals are removed from the drinking water supply through 20,000-pound granular activated carbon filters at public wells, which can cost more than a million dollars to install and typically must be changed out annually. Water providers have expressed fear they could be deemed a responsible party in potential litigation for disposing of those filters.

The agency issued a separate memo Friday declaring it would not go after farmers, municipal landfills, water utilities, municipal airports, and local fire departments, all entities which may have spread the chemicals, but did not make them.

But SCWA chief executive Jeff Szabo said, despite the memo, water providers are hoping Congress will give them stronger protection in law.

“SCWA did not manufacture PFAS and we did not pollute our aquifer with it,” he said. “We are responsible for removing it from drinking water and it’s our customers that are bearing that cost. Without robust protections for passive receivers of PFAS, our customers are at risk for being forced to pay for the cleanup once again.”

The cost of installing and maintaining treatment has been funded largely through state grants, rate hikes and surcharges passed onto consumers. Ratepayers of the SCWA, which provides water to 1.2 million people, in 2020 began paying an annual $80 surcharge to offset the cost of treating PFAS and the likely carcinogen 1,4-dioxane.

Jason Belle, chairman of the Long Island Water Conference, released a statement saying:  "We applaud the EPA’s commitment to hold PFAS manufacturers and polluters accountable for the costs of cleaning up these two contaminants in the environment. We also appreciate that EPA is not intending to target water providers in enforcement actions under the new hazardous substance designations, as we are passive receivers of the contamination that polluters caused."

Municipalities and water providers have already sued chemical manufacturers to recoup some of the remediation costs.

Paul Napoli, partner at the Melville-based firm Napoli Shkolnik PLLC, has represented several Long Island municipalities suing PFAS manufacturers including a class action case that manufacturing giant 3M agreed to settle for $10.3 billion last year.

Napoli said it is still unclear how much of that money will flow to Long Island water utilities.

“Given the significant contamination present on Long Island, it's anticipated that a substantial portion of the funds will be allocated towards constructing facilities to clean the water in the short term,” he said.

David Andrews, deputy director of investigations and senior scientist at the Washington, D.C., nonprofit Environmental Working Group, said hundreds of studies in people, animals and laboratory conditions have documented the extreme toxicity of PFOA and PFOS.

“This action from EPA is very significant in ensuring that contaminated locations are cleaned up and that the companies responsible for the contamination are held financially responsible,” he said.

By Vera Chinese

vera.chinese@newsday.com@VeraChinese

Vera Chinese covers Suffolk County government and politics. She joined Newsday in 2017 after working as an editor for the East End lifestyle publication northforker and a general assignment reporter for the New York Daily News.