Posted on April 24, 2024 by Seth Jaffe
Last Friday, EPA formally designated perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – including their salts and structural isomers! – as hazardous substances under CERCLA. I cannot really quarrel with the underlying decision to list PFOA and PFOS. Given the developing evidence about the risks that they pose, it’s difficult to argue that they are not in fact “hazardous substances.”
Of course, that’s not going to be the end of the story. As Robert Redford famously asked at the end of The Candidate, the real question is what do we do now.
Reading between the lines of EPA’s Federal Register Notice, it’s fairly clear that EPA has been asking itself that question. It’s also apparent that the answer is not as clear as EPA hopes it to be. Indeed, I have never read a Federal Register notice, and I’ve read a lot of them in my day, that’s as repetitive and redundant as this one. It’s as though EPA believes that, if it just keeps repeating that everything will be ok, then everyone will believe it and the sky will not fall. My favorite line from the Notice is this:
EPA concludes that designation is not expected to result in excessive litigation and that CERCLA will continue to operate as it has for decades. Indeed, CERCLA’s liability framework, coupled with EPA enforcement policies, has operated in a rational way for the more than 800 CERCLA hazardous substances already within its purview.
It was at this point in the narrative that 100% of private sector lawyers and consultants either broke into hysterical laughter or started crying in their beer.
I do have to acknowledge that EPA is trying to do the right thing, given the impossible situation in which it finds itself. Notably, EPA’s Office of Enforcement and Compliance Assistance has issued a policy to accompany the Notice, entitled PFAS Enforcement Discretion and Settlement Policy Under CERCLA. The Policy states that:
EPA does not intend to pursue otherwise potentially responsible parties where equitable factors do not support seeking response actions or costs under CERCLA, including, but not limited to, the following entities: (1) Community water systems and publicly owned treatment works (POTWs); (2) Municipal separate storm sewer systems (MS4s); (3) Publicly owned/operated municipal solid waste landfills; (4) Publicly owned airports and local fire departments; and (5) Farms where biosolids are applied to the land.
This is definitely better than nothing for at least some of the large numbers of entities that can reasonably consider themselves victims of PFAS contamination, but which are formally liable under CERCLA as it has been interpreted over the past 40+ years. Time will tell whether EPA has any basis for its repeated assurances that no one need worry about how this will all turn out. For now, I’ll just say that I am not sanguine.