Posted on November 18, 2022 by Seth Jaffe
Environment and Energy Report (subscription required) had a story yesterday about growing opposition to EPA’s proposal to list two PFAS compounds, PFOA and PFOS, as hazardous substances under CERCLA. Here’s what really caught my eye about the opposition. The National Association of Clean Water Agencies opposes the proposal. They think it inconsistent with EPA’s historical implementation of CERCLA:
“EPA’s proposed designations, however, fall short of the Agency’s aims by failing to advance the “polluter pays” approach the Agency has repeatedly espoused. The proposal instead threatens to push significant costs and liabilities onto local communities; increase affordability concerns, particularly for disadvantaged communities; and untenably put cleanup actions ahead of critical source control and risk assessment processes.”
I’m very sympathetic to the concerns expressed by the NACWA, but I don’t agree with their history. CERCLA has never been about making the polluter pay. It has always been about avoiding having the government pay. My favorite example remains the Cannons Engineering Corporation sites. In the 1970s, as concerns about hazardous waste management were growing, several responsible companies asked what is now the Massachusetts Department of Environmental Protection what they should do with their waste. MassDEP informed the companies of a state-of-the art incineration facility – then, the latest technology – in Bridgewater, MA, operated by Cannons Engineering. The companies did their due diligence and began contracting with Cannons. They even continued their due diligence, often following trucks to make certain that their waste was really going to Cannons. They also got “certificates of thermal destruction” from Cannons, confirming that their wastes had been incinerated.
Imagine their surprise when it turned out that Cannons, instead of incinerating much of the waste, was having it hauled away, including to sites in New Hampshire, where it was dumped down various drains. Cannons ended up resulting in four separate Superfund NPL sites. Moreover, notwithstanding that the generator companies never arranged for disposal of their waste at the other sites, the companies were named as PRPs at the other sites.
Can any fair-minded person argue that the companies “polluted” the other sites? I think not. They were held liable because, at the time, people thought that, as between an innocent corporation and an innocent government, it was better that the innocent corporation pay for the cleanup than the innocent government.
One can understand why government took the position it did. One can also disagree. I happen to think that it makes more sense for government to pay (perhaps with funds from a Superfund tax!). Because society as a whole benefitted from the economic activity that led to the pollution, and because the companies did not in any reasonable understanding “cause” the contamination, society as a whole should pay the cleanup costs.
And so we come to PFAS. At sites where the manufacturers and distributors of PFAS cannot be held liable, should municipalities, water treatment facilities, recyclers, and other entities far removed from decisions about PFAS, and often having no idea that they were even handling PFAS, be liable for the cleanup costs?
CERCLA case law says yes. I think a reasonable sense of fairness says no. As EPA moves forward with its listing proposal, we’ll see whether the public believes in 2022 that “innocent” companies should pay for PFAS remediation, rather than “innocent” governments.
The fate of PFAS regulation may tell us a lot about who the public thinks should be responsible for such contamination. Or it may just tell us about the state of inertia and gridlock in the United States today.