Tackling PFAS With Superfund Legislation Risks Shifting Expenses to Community

The EPA’s program to pace Superfund cleanups of two “forever chemicals” to make polluters instead than taxpayers foot the invoice raises issues that the law’s limited versatility will change the load of expenditures back again to communities, attorneys and teams representing community companies say.

The Comprehensive Environmental Response, Payment, and Legal responsibility Act can drive providers that have dumped the chemicals on land or in drinking water to fork out to remediate the web-sites, mentioned Amanda E. Aspatore, standard counsel for the Countrywide Affiliation of Thoroughly clean Drinking water Companies representing publicly owned wastewater procedure amenities.

But CERCLA’s sweeping legal responsibility provisions, couple of exemptions, and prospects for just one potentially liable occasion to sue many others in an try to share cleanup expenses signifies “companies who did not lead to problems” can be impacted, Aspatore claimed.

EPA’s regulation “would place every [water] utility in the country at chance of liability” for the two for each- and polyfluoroalkyl substances (PFAS) substances discharged to the plant from upstream industries, landfills, and even bogs, she said.

The Environmental Protection Agency in September proposed to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—used for decades in thousands of products—as dangerous substances.

The chemical compounds don’t split down by natural means. They’re also in the bodies of most US residents, who lose the chemicals in sewage, which flows to treatment crops, Aspatore mentioned. Cancer, heart complications, weakened immune devices, and other overall health concerns are associated with the substances.

That could mean increased cleanup charges of sewage therapy, landfills, and other municipal expert services, leaving taxpayers and ratepayers—rather than industries that created or profited from the items manufactured with the chemicals—footing the monthly bill, stated Aspatore, echoing views of dozens of drinking water utility teams, the US Convention of Mayors, and the Countrywide Association of Counties.

The EPA said it had other tools at its disposal. “Although EPA does not have authority to exempt individual entities from legal responsibility, the company is looking at approaches to deal with these types of worries with many enforcement applications based on equitable considerations,” it reported in a assertion.

The company “may also use enforcement resources to limit economic burdens on this kind of functions, these as by getting into into settlement agreements that present contribution defense from statements by other responsible parties.”

Wide Legal responsibility

Municipalities and treatment method companies anxiety wrapping the chemicals into CERCLA’s wide liability provisions will increase fees and set off infinite court docket battles to divide the cleanup invoice or argue that it doesn’t apply to the facility staying sued.

Another problem is the pervasive use of the supplies for a long time in advance of impacts were effectively comprehended.

The Superfund legislation stemmed from one particular of the nation’s worst environmental disasters.

Hooker Chemical Co. dumped 22,000 tons of dangerous waste into New York’s Like Canal commencing in the 1940s, and households and a faculty ended up designed on top rated of the chemical compounds. Squander oozed on to the floor, choking inhabitants with fumes, producing beginning defects, and forcing people to relocate, an EPA memoir remembers. A clause in the home sale deal intended Hooker was not liable.

CERCLA’s passage was in essence the country indicating never ever again, by creating escaping liability extremely challenging. A solitary polluter can be held liable for a site’s full cleanup when blame can not be apportioned, and a celebration can be held liable for steps it took even in advance of the law’s enactment.

Sizeable Discretion?

Backers of the EPA’s proposal agree CERCLA didn’t supply the company broad overall flexibility to exempt industry sectors.

But Melanie Benesh, the Environmental Working Group’s vice president of authorities affairs, suggests wastewater organizations, farm groups, and other critics overstate the diploma to which the regulation could result in runaway legal responsibility charges. EPA can wield enforcement discretion in which acceptable, she claimed, to steer clear of unintended consequences.

EPA’s proposal regularly references its current enforcement discretion, and provides that there are several actions along the way concerning designating a thing a harmful compound and a web-site being included to the Superfund precedence checklist for cleanup.

The Colorado, Ga, Oklahoma, and Wyoming Farm Bureaus are between all those arguing that EPA’s proposal could put farmers on the hook when they ended up unaware contaminants ended up distribute on their land as fertilizer.

Enforcement discretion could be applied, together with an existing CERCLA exemption, to handle considerations from water utilities and farmers that EPA’s rule could create new liabilities for spreading biosolids—the conclude outcome of sewage treatment—as farm fertilizer. EPA should publicize CERCLA’s exemption for fertilizer applications, explained the Environmental Security Community, symbolizing much more than 550 previous EPA workers.

But CERCLA’s fertilizer exemption has its limitations, said EPN’s Elizabeth Southerland, a previous science and engineering office environment director for the EPA’s h2o workplace. The EPA really should distinguish in between wastewater agencies generating efforts to mitigate environmental impacts and people turning a blind eye to the contents of such material or working with farm applications to dump enormous volumes of it, she said.

There’s also debate about no matter whether the fertilizer exemption would implement less than the rule if the biosolids contained PFOA or PFOS substances, stated Alexandra Dapolito Dunn, who earlier served as a major EPA regional and headquarters formal.

The exemption would very likely be challenged in court docket, since biosolids that contains PFAS now have set some Maine farmers out of business, said Dunn, now a spouse at Baker Botts LLP.

A further protection that makers of PFOA and PFOS—or products created with them—might qualify for to prevent liability is identified as the “useful product” defense, Aspatore stated.

In the 2009 Burlington Northern and Santa Fe Railway Co. v. U.S. situation, the Supreme Courtroom held that a company that will make, but does not dispose of, a product or service isn’t liable for disposal. Use of that defense could increase the possible of wastewater remedy facilities and municipal waste web-sites to be held liable for wastes they deal with, but didn’t build, she mentioned.

The EPA in its statement included that it “is committed” to even further engagement with impacted groups and devoting “resources to deal with equity considerations related to PFOA and PFOS.”

‘Innocent Functions,’ Ratepayers

Some h2o and waste associations back again the EPA’s proposal, such as the Little Hocking Drinking water Association, a non-profit h2o enterprise in rural Southeast Ohio. Minimal Hocking became the epicenter of a PFOA contamination crisis 20 many years back after understanding its nicely subject was laden with PFOA. The crisis was the focus of the movie “Dark Waters.”

But cleanup charges “should be borne by the turbines, makers, and ‘disposers’ who benefited and carry on to advantage from the a long time of illicit disposal,” Small Hocking wrote.

Normally ratepayers who are the very least capable to spend might have to, claimed the Town of Weatherford, Texas, in responses to the EPA. Just about 10% of the city’s retail client base is minimal profits, it reported.

Paths Forward

Individuals would probably bear significantly of the cleanup, litigation, and other prices that airports, drinking water utilities, waste handlers, and other individuals will be spending either instantly or ensuing from courtroom disputes about legal responsibility, mentioned Jeffrey Longsworth, a associate with Barnes & Thornburg LLP.

If the EPA and Congress have an understanding of those people costs and acknowledge they’ll be compensated by people presently struggling with inflation, there will be stress on the agency to fall this regulatory preference, explained Longsworth, who counsels the PFAS Regulatory Coalition, representing industrial organizations, municipal expert services, and other teams.

Longworth said there are other strategies to deal with all those problems: Congress could move in to include new CERCLA exemptions or use its expedited authority less than the Congressional Evaluation Act to destroy the final rule.

A different technique: a treatment akin to the 1997 Nationwide Settlement Proposal, he claimed.

Congress proposed that settlement immediately after extra than 40 states submitted lawsuits towards tobacco organizations searching for to recover Medicare and other expenditures. In the long run, the nation’s 4 greatest tobacco organizations agreed to a court-negotiated Grasp Settlement Settlement.

But couple count on that a divided Congress can come across common ground, and EPA has pledged to issue a final regulation subsequent calendar year.

The EPA also could incorporate regulatory authorities which includes CERCLA to concentrate on polluters and exempt public solutions “that we may possibly, as a subject of public policy, drive to exclude,” mentioned Dunn from Baker Botts.

Regulating the chemical compounds underneath individual provisions of the Source Conservation and Restoration Act would mechanically make them harmful substances below CERCLA, nevertheless give the agency the capability to exclude some wastes, she said. The EPA is operating on a rule to designate PFOA, PFOS, and two other PFAS dangerous RCRA wastes, but that could acquire a long time, Dunn reported.

Sherri Crump

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