Why Reopening CERCLA Cleanups for PFAS Could Have Monumental Implications
The Issue at Hand
Last week, Inside EPA reported that the US Environmental Protection Agency (EPA) plans to reopen Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cleanups on a case-by-case basis due to the presence of per- and polyfluoroalkyl substances (PFAS). This has caused concern within the regulated community, with many worried about the implication of reopening significant numbers of sites.
The Crux of the Issue
The EPA is planning to reopen Superfund sites due to PFAS, which could have many monumental implications. While some have challenged the listing of PFAS as hazardous substances under CERCLA, with a pending proposed rule for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), it is highly unlikely that a court will find that the EPA was arbitrary and capricious in listing these substances. Instead of challenging the threshold listing decision, it would be more useful for the regulated community to develop credible arguments against cleanup standards in the parts per quadrillion range.
The Monumental Implications
The enormous implications of reopening Superfund sites cannot be understated. While the Inside EPA article focuses on the EPA’s authority to require additional work if the remedy is not protective, potentially responsible parties (PRPs) may have defenses to claims that EPA can require additional work to address PFAS. Nevertheless, the standard reservation of rights for “unknown” conditions could be employed, requiring the EPA to assert new claims and leaving open the possibility of many such cases. This is especially true unless settling defendants decide to address PFAS under an existing consent decree, even though there might be grounds to dispute the EPA’s authority to require additional work.
The Heart of the Problem
CERCLA is an inefficient and poorly written statute, causing parties to spend millions of dollars without much evidence of the cleanup being worthwhile. This has become a contentious issue, with the EPA using its significant powers of coercion and causing growing opposition to the modern administrative state. The agency’s repeated use of coercive power is part of the reason why such opposition exists. It is also why there has been growing defiance to the listing proposal, with the original Sackett decision being an example of this.
While it is vital to address PFAS as a hazardous substance under CERCLA and remediate Superfund sites thought to be closed, doing so has monumental implications. The regulated community must come to terms with this shift, but the EPA must also avoid sowing the wind, lest it end up reaping the whirlwind.
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