Posted on July 30, 2021 by Donald K. Shandy
In the race to regulate PFAS substances, Congress’ actions have outpaced agency knowledge, leaving industry to wager on the outcome. PFAS are among the ubiquitous “forever chemicals,” used in everything from fire suppression foam to non-stick cookware to waterproof shoes, and releases to the environment are exceedingly difficult to remediate.
On July 21, 2021 the House of Representatives passed a bill dubbed the PFAS Action Act of 2021. The bill would require the EPA to designate PFAS and related PFOA compounds as hazardous substances under CERCLA within one year of the Act’s enactment. Within 180 days after enactment, the EPA must list PFAS as a hazardous air pollutant under the Clean Air Act (CAA). Further, it requires that EPA determine within five years after the Act’s enactment if other perfluoroalkyl and polyfluoroalkyl substances should be designate as hazardous under both CERCLA and the CAA.
While the bill will have a much tougher road for approval in the Senate, the House version provides plenty of guidance on what actions industry cannot take, but no guidance on what a company can do to protect itself from the specter of liability from both government enforcement and private tort actions. The agencies are not much help either.
In December of 2020, the EPA published their interim guidance for managing PFAS. The EPA ranked treatment options as follows: interim storage, deep well injection, hazardous waste landfills, solid waste landfills, hazardous waste combustion, and other thermal treatment. Thus, even the EPA’s guidance suggests that the safest course for handling PFAS is to sit on it until treatment standards can be established. Yet EPA’s only guidance for storing PFAS is to follow manufacturers’ recommended best management practices and adhere to relevant industry, federal, state, or local requirements or guidelines. Of course, storing PFAS can lead to liability risks for complying with RCRA and tort actions. EPA ends its guidance by noting its plan “identifies key gaps in the current state of the science to support decision-makers, including gaps in the science of PFAS destruction and disposal.”
This sprint to regulate by Congress, coupled with the “gaps in the science of PFAS,” has already led companies to start betting on their future liabilities. 3M, DuPont, and DuPont’s spin off Chemours have already made headlines for multimillion-dollar settlements and allocations of even more funds to be set up in escrow for future PFAS litigation and clean up. However, it’s not just the chemical giants that are trying to hedge the risk. Smaller companies with shallower pockets for liabilities and research regarding storage, disposal, and cleanup must also begin to wager on what the future holds. Without regulations in place guiding disposal and clean up thresholds, these companies are betting the farm in determining these thresholds themselves.
The cheaper options for storage, disposal, and clean up today could mean greater costs in the future for a second clean up or tort liability. But overspending to store, dispose, and clean up today could lead these companies into financial distress and unnecessarily close the business. Regulators and Congress need to find a pace that introduces regulation at a rate complementing the science so companies aren’t forced into such high-stakes gambling.