Designate PFOA, and PFOS a “ hazardous substance“, and regulate PFAS a class
EPA, Michael Regan, President Joe Biden
Under CERCLA, the EPA can designate PFOA and PFOS a “hazardous substance”. The Biden Administration has pledged to designate certain PFAS as hazardous substances under federal law. We at North Carolina Stop Genx are petitioning the EPA to not wait, and designate PFOA and PFOS a “hazardous substance” under CERCLA now.
We include in this petition that the EPA must move quickly to regulate PFAS as a class.
This includes developing a method to test for PFAS as a class, and setting health-protective limits on PFAS in drinking water.
We are aware that on January 19, 2021, the EPA announced that it will be taking the final step needed to issue PFOA and PFOS final regulatory determination under the SDWA (safe drinking water act). This does not however address PFOA and PFOS as a “hazardous substance”, or responsible parties liable, and any reporting of PFOA and PFOS as hazardous substances.
Responsible Party Liability
The first immediate effect occurs in the context of a responsible party’s liability to EPA and other responsible parties.
Under CERCLA section 107(a) (42 U.S.C. § 9607(a)), EPA can recover costs that it incurs addressing the release of a “hazardous substance” from responsible parties. Section 107(a) of CERCLA identifies four categories of persons who are responsible for “all costs of removal or remedial action” incurred by EPA, and those terms are defined to cover the cleanup, removal, and other remedies implemented to address a release or threatened release of a “hazardous substance” into the environment. In addition, under section 113(f) of CERCLA (42 U.S.C. § 9613(f)),
a responsible party can seek contribution from other parties who are also liable for the release of a “hazardous substance” under section 107(a).
Thus, designation of PFOA and PFOS as hazardous substances would both create CERCLA liabilities and afford contribution remedies to responsible parties at PFAS sites. Reporting Obligations The second effect involves release reporting obligations.
Under CERCLA section 103(a) (42 U.S.C. § 9603(a)), a person in charge of a facility must report any release of a “hazardous substance” from the facility if the quantity of that release is equal or greater than the “reportable quantity” (RQ). Section 102(b) of CERCLA (42 U.S.C. § 9602(b)) dictates an RQ of one pound for any “hazardous substance” if EPA does not promulgate a specific quantity for that substance at 40 CFR 302.4 and 302.5.
DESIGNATION OF PFOA,PFOS and PFAS AS HAZARDOUS SUBSTANCES WOULD BOTH CREATE CERCLA LIABILITIES AND AFFORD CONTRIBUTION REMEDIES TO RESPONSIBLE PARTIES AT PFAS SITES. REPORTING OBLIGATIONS THE SECOND EFFECT INVOLVES RELEASE REPORTING OBLIGATIONS.
We petition that the above CERCLA sections are applied to PFOA and PFOS by the Biden Administration as soon as the EPA head takes office. This also includes regulating PFAS as a class, developing a method to test PFAS as a class, and setting health protective limits on PFAS in drinking water.
To:
EPA, Michael Regan, President Joe Biden
From:
[Your Name]
We petition that the above CERCLA sections are applied to PFOA and PFOS by the Biden Administration as soon as the EPA head takes office. This also includes regulating PFAS as a class, developing a method to test PFAS as a class, and setting health protective limits on PFAS in drinking water.