Posted on September 6, 2022 by Seth Jaffe
EPA announced late last month that it is proposing to list PFOA and PFAS as hazardous substances under CERCLA. EPA appears to be sanguine about how the listing will play out in the real world.
“EPA is focused on holding responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment. EPA will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination.”
I’m less optimistic. I should be clear that I have no problem with the listing decision itself. There seems to be sufficient information to warrant listing. My concern is simple. CERCLA doesn’t work and it never has. I have discussed CERCLA’s failings previously, but I can never resist trotting out this chestnut:
“Vagueness, contradiction, and dissembling are familiar features of environmental statutes, but CERCLA is secure in its reputation as the worst drafted of the lot.”
The relevant problem for this discussion is that CERCLA provides no basis for a rational assessment of how much cleanup is enough. That’s going to come to the forefront in at least two ways for sites at which PFOA and/or PFOS are detected.
First, PFOA and PFOS are pretty much literally ubiquitous. We’ll find out how true this is when detection methods improve to the point where they can be detected in the low parts per quadrillion range at which EPA’s recent health advisories say adverse effects can be found. What do we do when it turns out that the United States is just one big Superfund site?
If EPA thinks that it can manage the issue through the hazard ranking system process, what happens when it starts to score sites using the same data that yielded a health advisory for PFOA of 4.0 parts per quadrillion. How is EPA going to prioritize sites when there are neighbors everywhere legitimately concerned that there’s a site near their home with elevated levels of PFOA and PFOS?
And, by the way, does anyone who knows anything about Superfund think that EPA’s “enforcement discretion” will be sufficient – even if exercised with the wisdom of Solomon – to “protect “minor parties who may have been inadvertently impacted by the contamination”?
EPA has never been able to manage these issues under CERLCA and they are only going to get worse with PFAS. Maybe the listing of PFOA and PFAS will be the straw that breaks the camel’s back. And that might even be a good thing, if we had a functioning Congress that could take a reasonable look at CERCLA’s flaws and come up with something better.