Last week, Inside EPA (subscription required) reported that EPA will reopen CERCLA cleanups due to the presence of PFAS on a case-by-case basis. The article reported on the gnashing of teeth among the regulated community at the prospect of seeing a significant number of sites reopened. As a card-carrying member of the regulated community, I am prone to teeth-gnashing as well. And I agree with my friend Jeff Porter, who was quoted by Inside EPA as saying that reopening Superfund sites due to PFAS could have "monumental implications."
Taking that as a given, I still think it's useful to try to get past the gnashing of teeth and delve into the details a bit.
First, while I'm sympathetic to concerns about listing a class of PFAS as a hazardous substance and to concerns about listing many individual compounds about which we know very little, I am very skeptical about challenges to the listing of PFOA and PFOS, which is EPA's currently pending proposed rule. The odds that a court, even in the person of a very conservative judge, is going to find that EPA was arbitrary and capricious in listing PFOA and PFOS are slim to none.
It would be better for the regulated community to develop cogent and credible arguments against cleanup standards in the parts per quadrillion range than to challenge the threshold listing decision.
Second, the monumental implications of reopening Superfund sites are going to be unavoidable. The Inside EPA article focused on EPA's authority to require additional work if the remedy is not protective. I think that PRPs might well have defenses to claims that EPA can require additional work to address PFAS.
However, what Inside EPA did not discuss is the standard reservation of rights for "unknown" conditions. Use of the unknown conditions reopener by EPA would require EPA to assert new claims, but this does seem to be exactly why the unknown conditions reopener exists, and I think we're going to see a lot of such cases, unless settling defendants decide to address PFAS under an existing consent decree even though there might be grounds to dispute EPA's authority to require additional work.
Which brings me to what's really at issue here. CERCLA is a terribly written statute that has led parties to spend millions of dollars without much evidence at all that the cleanups provide significant benefit. And EPA has significant powers of coercion under the statute. EPA's repeated willingness to use its powers of coercion is part of the reason why there is such opposition to the listing proposal. It's why the original Sackett decision happened. And it's part of the explanation for growing opposition to the modern administrative state.
So I advise the regulated community to get used to the idea of PFAS as hazardous substances under CERCLA and to the likely need to remediate PFAS at Superfund sites thought to be closed, but I also advise EPA to avoid sowing the wind, lest it end up reaping the whirlwind.
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