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Not Every Hazardous Substance is a “Hazardous Substance”: Addressing an Emerging Containment without a CERCLA Designation

Not Every Hazardous Substance is a “Hazardous Substance”: Addressing an Emerging Containment without a CERCLA Designation

Adam Mittermaier

            Consider the hazards of perfluorooctanoic acid, or PFOA. One, PFOA is toxic to humans and animals.[1] The chemical contributes to liver and thyroid damage, low infant birthweight, decreased immune function, and cancer.[2] Two, PFOA is elemental in the American home.[3] Due to its convenient water and stain-resistant properties, PFOA was once used in cookware, food packaging, clothing, and carpet.[4] Three, PFOA is ubiquitous in the environment.[5] The blood of ninety-nine percent of the U.S. population now contains PFOA and Antarctic soils bear its traces.[6] Four, PFOA is resistant to decomposition, bioaccumulative, and mobile through air and water.[7] In an adult human, PFOA has a half-life of 8 years.[8]

           Without a doubt, PFOA is a hazardous substance. And yet, PFOA is not a “hazardous substance.”[9] That is, while PFOA endangers public water supplies across the United States, EPA has not designated PFOA a “hazardous substance” under the nation’s most important environmental clean-up statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[10] EPA is cooperating with industry to eliminate PFOA from consumer products, but the agency has barely begun to address the legacy of contamination from over 60 years of PFOA production, use, and disposal.[11] Without a CERCLA designation, some highly contaminated sites are likely unable to score onto the National Priorities List (NPL).[12] Other sites may be on the NPL, but their remedies do not address PFOA contamination.[13] The circumstances demand prompt action to designate PFOA a “hazardous substance” under CERCLA, but the current EPA leadership are dragging their feet.[14]

            The nation will not have a complete solution to this problem until EPA designates PFOA a “hazardous substance.” For the meantime, this article offers strategies for mitigating the long-term consequences of EPA’s delay in designation. Part I will provide background on PFOA’s chemistry, uses, and hazards. Part II will explain EPA’s existing regulation of PFOA and both the importance and improbability of prompt CERCLA designation. Part III will examine other authorities and options available to EPA Regions to begin addressing PFOA contamination in the environment.

[1]Agency for Toxic Substances and Disease Registry, Toxicological Profile for Perfluoroalkyls (Draft for Public Comment at 6) (2018) [hereinafter ATSDR]; EPA, Drinking Water Health Advisory for Perfluorooctanoic Acid 10 (2016) [hereinafter EPA, LHA].

[2]ATSDR, supra note 1, at 6; EPA, LHA, supra note 1, at 10.

[3]Kara Steward, Per- and Poly-Fluorinated Alkyl Substances (PFAS), Dep’t Ecology St. Wash., https://ecology.wa.gov/Waste-Toxics/Reducing-toxic-chemicals/Addressing-priority-toxic-chemicals/PFAS (last visited Nov. 11, 2018); EPA, LHA, supra note 1, at 14.

[4]Steward, supra note 3; EPA, LHA, supra note 1, at 14.

[5]EPA, LHA, supra note 1, at 9, 21.

[6]Id.

[7]Id.at 16, 26.

[8]ATSDR, supra note 1, at 4.

[9]40 C.F.R. § 302.4 (2018).

[10]Id.; Laurel Schaider, Federal Health Study on Drinking Water Contaminants Calls into Question Safety of Nation’s Drinking Water Supply, Union Concerned Scientists Blog (July 27, 2018), https://blog.ucsusa.org/science-blogger/federal-health-study-on-drinking-water-contaminants-calls-into-question-safety-of-nations-drinking-water-supply.

[11]Sanne H. Knudsen, Regulating Cumulative Risk, 101 Minn. L. Rev. 2313, 2355–56 (2017).

[12]See 40 C.F.R. § 300 app. A (laying out the Hazardous Ranking System that EPA uses to determine whether a release of a hazardous substance is eligible for inclusion on the NPL); Superfund Site Information: Wolverine Worldwide Former Tannery, EPA, https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0510613 (last visited Nov. 17, 2018) (specifying that the site is “not on the NPL”).

[13]One such site is the Butterworth Landfill in Grand Rapids, Michigan. Butterworth #2 Landfill, Grand Rapids, MI, EPA, https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.cleanup&id=0502576 (last visited Nov. 11, 2018). The Butterworth site is a known disposal location for Wolverine Worldwide Tannery which used 3M’s PFOA-containing Scotchgard to treat leather. Id. EPA capped the Butterworth Landfill in 2000 and the site is now in the monitoring phase, but concern is building that the remedy has not protected Grand Rapids water supply from PFOA. Id.; Amy Biolchini, Kent County PFAS Cancer Study May Not Draw Conclusive Results, Mich. Live (May 25, 2018), https://www.mlive.com/news/grand-rapids/index.ssf/2018/05/kent_county_pfas_cancer_study.html

[14]See, e.g.,Annie Snider, White House, EPA Headed off Chemical Pollution Study, Politico (May 14, 2018, 12:43 PM), https://www.politico.com/story/2018/05/14/emails-white-house-interfered-with-science-study-536950 (reporting that top officials at EPA intervened to delay publication of ATSDR’s toxicological profile for PFOA).

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