We’ve discussed in our previous posts the process that EPA will likely use to designate PFOA and PFOS as “hazardous substances,” how that designation will impact responsible parties, and what effects it may have on current EPA-lead investigations and remediations. In this article we discuss how the process may impact states that are also addressing PFAS. Many states have “superfund” laws modelled on CERCLA that allow those states to respond to contamination and to seek cost recovery from responsible parties for a release of a “hazardous substance” into the environment.
State Implications
Many state “superfund” regimes rely on CERCLA for formal “hazardous substance” designations and define a “hazardous substance” to automatically incorporate, among other things, substances designated by EPA as hazardous substances.
Accordingly, an EPA designation of PFOA and PFOS as hazardous substances is likely to have ripple effects in states where analogous superfund statutes adopt EPA’s hazardous substance list. Below are three examples of state statutory provisions that could lead to further state actions following an EPA designation:
- Section 103 of the Pennsylvania Hazardous Sites Cleanup Act (35 P.S. § 6020.103) defines a “hazardous substance” to include those “defined or designated as a hazardous substance pursuant to the Federal Superfund Act.”
- Section 58:10-23.11b of the New Jersey Spill Act defines a “hazardous substance” to include “the list of hazardous substances adopted by the federal Environmental Protection Agency pursuant to section 101 of the ‘Comprehensive Environmental Response, Compensation and Liability Act of 1980,’ Pub.L.96-510 (42 U.S.C. 9601 et seq).”
Section 9103 of the Delaware Hazardous Sites Cleanup Act (7 Del.C. § 9103(25)) defines a “hazardous substance” to include “any hazardous substance as defined in CERCLA.”