Bucking its deregulation agenda, EPA says polluters must pay for PFAS cleanup

Two of the oldest and most toxic PFAS chemicals will remain in a federal cleanup law, keeping the onus for the industrial pollution on the companies that created it, the Environmental Protection Agency has decided.

Since he was sworn in at the end of January, EPA Administrator Lee Zeldin has pushed to shrink the size of the agency and said the agency should have an active role in supporting automakers, AI developers and other industries. Traditionally, the EPA has defined its mission as protecting human health and the environment.

But in a statement about the PFAS decision last week, Zeldin said he had “heard loud and clear from the American people, from Congress, and from local municipalities about this particular issue.”

The move means companies that have previously made or used the chemicals, like Maplewood-based 3M, will face liability in federally led efforts to remove them from the environment. Already, widespread PFAS contamination has been expensive for 3M: The company settled for $850 million with the state of Minnesota in 2018 over widespread pollution in the eastern Twin Cities metro, and last year struck a $12.5 billion settlement with cities and towns across the country who have to filter PFAS out of their drinking water.

PFAS, or per- and polyfluoroalkyl substances, are a class of thousands of industrial chemicals that are used to snuff out fuel fires, etch computer chips and make products nonstick or water and grease-resistant. They were pioneered by 3M and DuPont in the last century but have built up in humans’ bodies and spread through the environment because they do not degrade naturally.

The company said it still intends to stop manufacturing all forms of PFAS by the end of this year. “3M has made multibillion-dollar investments in state-of-the-art treatment technologies at its manufacturing sites that will continue to remediate PFAS in the environment after our manufacturing exit,” 3M said in a statement to the Minnesota Star Tribune.

The EPA’s announcement is “really important for holding polluters accountable,” said Melanie Benesh of the nonprofit Environmental Working Group.

Lindsey Remakel, a shareholder attorney with the firm Fredrikson & Byron, said the two substances “have been among the most studied in recent history and have been the source of significant public concern. So the EPA’s decision to retain this designation didn’t actually come as a major surprise.”

It’s still a significant decision for real estate developers and manufacturers, the kinds of clients Remakel represents. CERCLA, the law that created Superfund, can create “strict” liability — meaning a landowner could be on the hook for cleanup, even if they didn’t cause the pollution, Remakel said. Companies or landowners can also sue each other to contribute to cleanup costs, she added.

PFAS have been included under the state’s toxic waste cleanup rules since 2007, according to a statement from the Minnesota Pollution Control Agency. That year, the MPCA and 3M entered into an agreement to investigate chemical pollution in the eastern Twin Cities.

The EPA has been sued over its PFOA and PFOS cleanup rules by the U.S. Chamber of Commerce and other groups. The agency had asked a judge on five occasions this year for more time to decide whether it would continue to defend the lawsuit.

The American Chemistry Council, an industry group, slammed the decision in a statement: “Rather than accelerating cleanups, this action risks creating more Superfund sites instead of closing them, and expanding liability far beyond chemical manufacturers to include downstream users, farmers, municipalities, and small businesses.”

At the same time, the EPA under Zeldin has vowed to shut down its scientific research arm, and in July, some employees of an EPA lab in Duluth were put on leave after signing a letter of dissent. The EPA also rolled back restrictions on some PFAS in drinking water this spring but kept restrictions on PFOA and PFOS.

The EPA also said in a news release on Monday that it will try to speed along approvals for new chemicals to come into commercial use. Benesh said that ran counter to changes Congress made to federal law in 2016 to make review more stringent, in part to “prevent the next PFAS disaster.”

PFOA and PFOS, for example, “evaded any kind of EPA review for decades before we realized how toxic they are,” Benesh said.

One question that remains with the EPA’s latest decision is how the cleanup law will be applied to municipal wastewater treatment facilities, which are handling all the PFAS that flows down household sewers and, in some cases, industrial waste.

Elizabeth Wefel, an attorney who represents greater Minnesota utilities with the firm Flaherty & Hood, said the agency has signaled it will not enforce cleanup law against water treatment plants as Congress works on a law that would shield them from liability.