After less than a month on the job EPA Office of Enforcement and Compliance Assurance (OECA) Chief David Uhlmann this week released a memorandum outlining EPA's National Enforcement and Compliance Initiatives (NECIs) for the Federal fiscal years 2024 through 2027.
As an aside, Assistant Administrator Uhlmann was awaiting confirmation to his position for over two years despite widespread support of his nomination. The United States Senate should be capable of much better. It needs to be.
Anyway, surprising no one, the "forever chemicals" known collectively as PFAS are prominently featured among the enforcement and compliance initiatives announced. Two things about the PFAS initiative catch my eye.
First, nearly two years ago, when EPA rolled out its ambitious PFAS road map, EPA announced that at least the two most thoroughly studied PFAS would be "hazardous substances" under Federal law by this summer. This week, Assistant Administrator Uhlman's memo says, "if EPA designates PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), this NECI would focus on implementing EPA’s PFAS Strategic Roadmap." If EPA designates? It is hard to believe EPA is having a change of heart. In its PFAS road map, EPA says that PFAS are an "urgent public health and environmental issue". Billions have been spent filtering the most miniscule concentrations of PFAS out of our drinking water and many more billions will be spent. So why is Assistant Administrator Uhlmann saying "if" and not "soon, when"? And, if EPA really means "if", what does it mean about the human health conclusions that have already been reached if PFAS aren't a hazardous substance but so many other less maligned chemicals are.
Second, Assistant Administrator Uhlmann says that if and when PFAS are covered by Superfund, EPA will not “pursue entities where equitable factors do not support [Superfund] responsibility . . ." As someone who has been working with this particular statute since 1988, I'm wondering since when have "equitable factors" had anything to do with this law which is famous, or infamous, for its joint and several strict liability?
EPA should, as it says it will, pursue "those who significantly contribute to the release of PFAS into the environment." But then what? DuPont is trying to pay $12.5 billion with a b to resolve its PFAS liability to water suppliers and over half of these United States are saying that's not enough. That has me wondering whether merely pursuing those who "significantly contribute to the release of PFAS into the environment" is going to raise the billions and billions of dollars necessary to remove them from our environment at concentrations above the parts per quadrillion that the Federal Government and many States have decided is unacceptable. And that's before we even get to the fact that PFAS are still in commerce and entering the environment every day.
If we're going to impose liability only on those who "significantly contribute to the release of PFAS" then I think we need to do more thinking about our PFAS goals. Could EPA be thinking the same thing?
