Discretion is the better part of designation

The EPA's enforcement discretion in its PFAS Superfund designation will help make sure that the polluters, not the victims, pay for cleanup

The second of a pair of posts on new EPA rules on PFAS or "Forever Chemicals". A list of all PFAS posts to date is here.

For readers who live on Whidbey Island or nearby, I'll be speaking about water in Oak Harbor on April 23rd Whidbey's Water Future In a Changing Climate - Whidbey Earth & Ocean Month.

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Designation

Last week we covered the EPAs new limits on PFAS compounds in drinking water, and explained the rush to get these rules passed in time to protect them from an incoming administration that might be less concerned with public health. You Can't Get Fooled Again. We suggested that for the same reason EPA would release a rule this week listing some PFAS compounds under the Superfund law. That happened today.

This final rule will designate two widely used PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, and will help ensure that polluters pay to clean up their contamination.

Biden-Harris Administration Finalizes Critical Rule to Clean up PFAS Contamination to Protect Public Health | US EPA

You can read more details here:

Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances | US EPA

This designation will enable identification, cleanup, and reporting of spills of these materials, for example from firefighting foam.

Discretion

Almost as important as the rule itself is the EPAs decision to exercise discretion in the enforcement of the rule:

EPA will focus on holding responsible entities who significantly contributed to the release of PFAS contamination into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.

The policy also reflects that EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including farmers, municipal landfills, water utilities, municipal airports, and local fire departments.

PFAS Enforcement Discretion and Settlement Policy Under CERCLA | US EPA

This is almost as big a deal as the Superfund listing. Just a few weeks ago in Wrong Side of the Road, we wrote about Washington State Department of Ecology's issues with investigation and cleanup around rural fire stations:

For now, we're stuck in a loop like that immortalized in Joseph Heller's Catch-22. It goes like this:

Rule 1: No PLP (Potentially Liable Person) without testing

Rule 2: No money for testing without a PLP.

Rule 3: See Rule 1.

Maybe the EPA can step in again to break the cycle in a couple of places, but this is going to need legislative action to resolve at scale.

Well, the EPA stepped up! With the Superfund listing, EPA has removed the requirement that there be a Potentially Liable Party, as the Superfund provides for investigation and cleanup where no such party can be found, while the enforcement discretion memorandum recognizes that fire departments and water systems are not the polluters here. Note, though, that it's a discretion, not an amnesty. The possibility of liability remains, as it should in case of gross negligence, for example a fire department improperly disposing of foam concentrate knowing that it is hazardous.

Washington State has it's own law, the Model Toxics Cleanup Act, or MTCA, modeled on CERCLA, the Superfund law, and administered by the Department of Ecology. To learn how this EPA action might trickle down to MTCA, I sent the following list of questions to Ecology:

• Will Ecology extend the same discretion under MTCA?

• Will more money be available under MTCA for investigation and cleanup?

• Will investigation and cleanup be able to proceed without a PLP?

• Will we be able to get fire departments and others to the table to cooperate with investigation and cleanup?

I'll let you know when I have answers.

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