For most of this century, I’ve been asked with some regularity whether Superfund was dead. I’ve always considered that question to be a victory of hope over expectation. Notwithstanding frequent criticism, frequently deserved, Superfund refuses to go away. As I made clear in a post this past April, the developing awareness of the problems caused by PFAS has pretty much proved Mark Twain once more to be on point. The reports of the death of Superfund have been greatly exaggerated.
All of this brings us to a report last week from Inside EPA (subscription required), which discussed EPA’s use of the Five-Year Review process to require PRPs to investigate the potential presence of PFAS at Superfund sites. In the article, an industry attorney complained that such Five-Year Reviews are “fishing expeditions”. I have some sympathy for this concern. If I may mix my metaphors, given the near omnipresence of PFAS, it’s somewhat akin to a fishing expedition conducted in a barrel of fish. You may find some fish, but that doesn’t mean it will be a meaningful exercise.
If I may hark back to my April post, it’s difficult to complain about EPA’s use of the Five-Year Review process to try to determine if there have been releases of PFAS at a Superfund site. On the other hand, precisely because PFAS are omnipresent, it is totally reasonable to complain about EPA’s tendency – (I’m being generous here; it would be more accurate to talk about EPA’s knee-jerk reaction) – to assume that any PFAS that are found are, in fact, the responsibility of the PRPs. EPA’s habit of simply going after the deep pocket in hand rather than the truly responsible party in the bush is one of the reasons why Superfund, or at least EPA’s administration of Superfund, is looked on with such disdain.
At a practical level, I advise PRPs to prepare for a steady stream of such Five-Year Review requests. Some PFAS are hazardous substances, and more have had MCLs promulgated. It’s one environmental issue that seems to resonate with the public. If I can pull out one more old pop culture reference, it’s tough to beat Bette Davis in All About Eve. “Fasten your seatbelts. It’s going to be a bumpy [ride].”
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For most of this century, I’ve been asked with some regularity whether Superfund was dead. I’ve always considered that question to be a victory of hope over expectation. Notwithstanding frequent criticism, frequently deserved, Superfund refuses to go away. As I made clear in a post this past April, the developing awareness of the problems caused by PFAS has pretty much proved Mark Twain once more to be on point. The reports of the death of Superfund have been greatly exaggerated.