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On August 26, the EPA published a proposed
rule that would designate PFOS and PFOA chemicals as hazardous
substances under section 102(a) of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA or
According to the EPA, the proposed rule would “increase
transparency around releases of these harmful chemicals and help to
hold polluters accountable for cleaning up their
contamination.” If the rule is adopted, chemical
manufacturers, end users and other responsible parties would be
required to immediately report releases of PFOA and PFOS that meet
or exceed the reportable quantity to the National Response Center,
the appropriate state or Tribal emergency response commission, and
local or Tribal emergency responders.
Under CERCLA, the EPA would have much greater enforcement power
to order clean-ups of PFOS and PFOA releases and compel responsible
parties to pay for the costs of such clean-ups. The “hazardous
substances” designation also would open the door for private
parties to seek the recovery of the costs they incur in assessing
and remediating the listed hazardous substances.
The EPA soon will open a 60-day window for the public to file
comments on the proposed new rule.
The proposed rule is part of a comprehensive EPA campaign to
limit the use of PFAS chemicals, of which PFOS and PFOA are two
subcategories. Such chemicals often are called “Forever
Chemicals” because they do not break down in the human body or
the environment and the EPA links them to a number of health
conditions. PFAS can be found in a wide range of consumer goods,
from non-stick cookware to stain-resistant carpets.
For example, on June 15, the EPA announced new, lower interim
lifetime Health Advisory Levels for two PFAS chemicals under
its Safe Drinking Water Act (SDWA) authority, and first ever
lifetime Health Advisory Levels for two additional PFAS. While the
new Health Advisory Levels are non-regulatory and non-enforceable,
these levels will likely be used as guidelines for the development
of federal, state and local drinking water regulations.
In addition, the sweeping federal
Infrastructure Investment and Jobs Act includes $10 billion to
assist states and disadvantaged communities fund improvements
needed to address PFAS in drinking water and wastewater
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