Transcript: Understanding EPA Policy
Speaker: You’re listening to environmentally speaking, a ah, weekly podcast diving into legal matters surrounding the environment, public utilities, energy, zoning, and permitting laws in Rhode island and the surrounding areas, with your host, Marisa Desautel
Clarice: Good morning, everybody, and welcome to this week’s episode of environmentally speaking.
Marisa Desautel: Hi, everyone. I’m attorney Marisa Desautel I practice environmental law in Rhode Island and Massachusetts.
Clarice: And I’m Clarice, here to remind you that space bags are still cool.
Marisa Desautel: We were just talking about Clarice finding a vacuum sealer on Amazon and trying it out for the first time.
Clarice: It’s incredible.
Marisa Desautel: This is excitement.
Clarice: Yeah. If you guys don’t remember those early two thousands commercials for space bags, they were onto something.
Marisa Desautel: And it works.
Clarice: Yeah.
Marisa Desautel: Okay.
Clarice: Oh, yeah. Thrilled. But that’s not what we’re talking about today.
Marisa Desautel: We’re not talking about vacuum sealing in the context of environmental law, are we?
Clarice: No, not even a little bit. Today we are doing, and we hinted at this not last episode, but the episode before about a, super fun site versus, I think we ended up doing Chevron deference instead.
Marisa Desautel: Yeah, Chevron deference was more exciting to me at that time. So we kind of. Well, frankly, I messed up, which is not new. But, we had today’s topic, and the Chevron deference sort of lined up in my head, and then I just decided to go forward with the episode that Clarice had not prepared for. So today we are doing the episode that Clarice is prepared for. And it’s, you know, I hate to say that these topics are exciting because we’re talking about environmental law, but it’s exciting in the sense that, these are changes to both. When we were talking about Chevron with federal case law and changes to federal statutory, policy and statutory change. So these are huge changes for. For folks that are involved with environmental science, environmental consultation, regulatory work, legal work, these are huge changes that will have implications for years and years. And so I thought it might be a good idea to talk about it and provide some information and also have a discussion about where we think the next couple of years might lead us.
Clarice: Yeah. And I have to say, I am a little. I’m pleasantly surprised is how I’m going to phrase it, because we were first talking about, PFAS and PFOA, and how that was going to interact with Superfund cleanup and how all that was going to work out back in April. And at the end of that episode, I remember us saying, these chemicals are in almost everything.
Marisa Desautel: Yep.
Clarice: What are they going to do? And the fact that we are now looking at a lovely little PDF from, the assistant administrator for enforcement and compliance assurance saying, hey, this is what we’re going to do. I didn’t expect that turnaround that fast.
Marisa Desautel: And we’re talking about the United States EPA. Right? The Environmental Protection Agency. Yeah. So the document that Clarice is talking about is, what the United States EPA calls a policy document, and it’s. I’ve seen them before. They tend to issue these kinds of documents when they’re talking about enforcement discretion under a particular statute or some other manner, in which they’re going to treat a certain program without going through the rule promulgation process. And that’s important because in my practice, I’ve heard that policies are generally not enforceable because they haven’t gone through the rule promulgation process. Technically, when an agency undertakes action, it has to do so pursuant to a written, formally, drafted and reviewed and commented upon, Ah, rule. Excuse me. And in this case, like in some other situations, the EPA will say, well, we are promulgating rules, or we did promulgate rules, but this is an issue that doesn’t fall squarely within those rules, but we still have, a process that we would like to follow, and so we’re going to put out this policy document, and that’s what we’re talking about today. It’s a policy document, it’s not a rule, it’s not a regulation that EPA.
Clarice: Has promulgated, and it gives the feeling more of instruction connected to the rule. Yes, the rules already out there. Here’s a little bit more clarification. Here’s a little bit more of what we’re actually expecting due to actionables.
Marisa Desautel: Correct.
Clarice: Which I think is going to be really helpful.
Marisa Desautel: Helpful. And let’s be honest, this is where environmental attorneys make their money. If you’re involved with this type of, OSHA compliance, or providing due diligence to a, prospective buyer, or if you’re in house counsel at a company and you’re wondering how to deal with PFAS, you take a document like this, if you’re an attorney and you do the best you can, pretty much, to advise the client on how they should proceed, interpreting what the EPA is saying as, hey, this is where we’re really going to be focusing our enforcement authority. So if you’re a little, teeny, tiny entity over here on the left, and you don’t really fall under any of these major categories, still do your best. PFAS is still a regulator, regulated contaminant. But maybe you have a little more time to figure out how the entire entity is going to come into compliance.
I read this document as enforcement rather than guidance
Clarice: Yeah. And actually, that segues really nicely into another question I had for you. So I read this document as enforcement. There will be enforcement actions against everybody but these five. And we’ll talk about the five categories. But it was this idea of, instead of being some directions about how to move forward, how to measure, how to regulate, it was, we’re going to regulate for everybody. But is that kind of opposite, that, like, negative version, is that common?
Marisa Desautel: No, it’s not common. You usually, instead, you get some instruction about where EPA is going to be focusing its, enforcement discretion at the beginning. And so it doesn’t necessarily mean that if you don’t fall within those parameters, you’re not subject to the enforcement. But it puts certain industries on notice that, okay, they’re starting out with us because we’re the highest risk in this case. Like you said, they’re talking about some categories that you could look at and say, oh, yeah, we’re pretty good to go here, but that, let me tell you, under the federal statute that we’re talking about here, CErCLA Superfund, we talk about this statute quite a bit. There is no room for, oh, we’re not regulated. CERCLA is a completely unique statute in that it carries with it something called strict liability, which means that you didn’t have to have any knowledge. If you are an owner in the chain of title for a particular piece of real property, or you were, an operator or someone that contributed to the release of a particular contaminant on a CErCLA property, you’re responsible. You’re liable. You are going to be dragged into the decades long process, litigation heavy to pay for the cleanup of the contaminated property. So it’s not that under PFAS enforcement discretion, if you’re not specifically listed in this document, you’re good to go. The federal statute liability still attaches to you. It’s just going to take the federal government a little bit longer to get to you. M so don’t think that if you’re not mentioned in this document, you don’t have to comply. Everybody has to comply. It’s just that the EPA is going to go after certain people first.
Clarice: Yeah, I just thought it was so interesting that, you know, we spent so much in the last time that we talked about this, about how these chemicals are so prevalent. And so I just don’t want to say ingrained, but they’ve become something that’s used so, so much that for them to then say, m, you know, we’re going to look at everybody except these five. To me, it just kind of showed me just how widespread this is.
Marisa Desautel: It’s like, everywhere.
Clarice: It’s easier to say the knots than it is the focusing.
Marisa Desautel: They had to start somewhere. And I don’t envy their position because PFAS, like you said, is pretty much everywhere. It’s been found within our human bloodstream. It’s been found in newborns. It’s, it’s in almost every single manufactured material. It’s. It’s what makes Teflon pans and pans that are non stick, non sticky. it’s a bond that allows for materials to slide off of and not adhere to a particular surface. And it’s been used since the 1940s, so you can imagine how long it’s had to pervade our culture.
Clarice: Oh, yeah. And I kind of.
EPA says some entities are exempt from cleanup under CERCLA
Let’s just jump right into the following entities, and I’m wondering if, as I read them off, if you have any gut reactions, just jump in. community water systems in publicly owned treatment works. That was the first one that they said are. I don’t want to say exempt. That’s not the right word, but are not being looked at right away.
Marisa Desautel: Yeah, yeah.
Clarice: then they have municipal, separate storm sewer systems.
Marisa Desautel: Okay.
Clarice: Publicly owned and operated municipal solid waste landfills.
Marisa Desautel: Okay.
Clarice: I’m jumping in on this one.
Marisa Desautel: That’s fine.
Clarice: I think for most of these so far. I think for all of them. They say these organizations don’t make or manufacture anything that requires pfas or PFOA, but they use. Or they can use.
Marisa Desautel: Yep.
Clarice: The idea that if it’s in everything, it’s been around since the forties. If you’re going to throw away your old pots and pans, if you’re going to throw away your whatever, it’s going to go to the landfill.
Marisa Desautel: Yep, that’s right.
Clarice: I mean, sure, the landfill is not making it. I can appreciate that. But something about the feeling of that is that space exempt doesn’t make sense to me. I feel like there would be a higher concentration because that’s where you put the stuff.
Marisa Desautel: Yeah. And I think the way that EPA is looking at this probably had to do with some politics and lobbyists and certain interest groups coming forward and saying, hey, if you drop the hammer on us right away, we’re going to go out of business. We’re not going to have enough money to proceed. And the categories of exception are, if you noticed, municipality yep. So they’re not trying to put, cities and towns out of business, quote, unquote, because that’s where our taxes go. That’s the infrastructure that we rely upon. And frankly, I don’t think EPA knows how to tackle those sources anyway. How do you go in and clean up a landfill? so I think they looked at that and said, let’s give that a moment and let’s focus on what we know we can tackle right now. And the same thing is happening at the Rhode island state law level. The legislature just enacted a new law that creates tiers of approach for PFAS contamination. And just like the EPA, the state of Rhode island is focusing on the source of the chemical where they’re looking.
Clarice: At start, not where it ends up.
Marisa Desautel: yeah, exactly. The companies that are, that are making PFAs, that are distributing PFAS products, and they’re saying, hey, dow chemical, hey, giant US corporation, stop making PFAs, stop making these items and products that are made with PFAs, and find something else. Let’s put a moratorium on this product. Let’s stop the source of it first, and then we’ll deal with how we get rid of the product that is persistent in the environment.
Clarice: So, to be clear, it’s not saying that down the road these spaces can’t be cleaned up. It’s just saying that they’re not kind of first on the list for.
Marisa Desautel: Right. Yeah. And EPA is saying these parties that we’re exempting are not primarily responsible. This concept fits perfectly within CERCLA. That’s the statute. We’re under, the Superfund statute, because under CERCLA, like I was saying, there is strict liability. It doesn’t matter if you had knowledge, as long as you’re in the chain of title, you’re responsible. But there are certain exceptions to that rule under CERCLA where if you can show that you were, something called a bona fide prospective purchaser for value, that you had no involvement with the release or the creation or any other, activity related to a CErcLA pollutant, then before you take ownership of the real property, if you’re looking to buy it, the EPA, and sometimes Dem will say, all right, we’re giving you this letter or this document that says, you are not liable. We promise to never sue you because we understand that you are not primarily responsible for the CerCLa contaminant. so this enforcement document is doing a little bit of the same thing, saying, you’re a wastewater treatment plant, you’re the final, collection point for PFAS. As a landfill, you’re the final collection point for PFAS. You’re not primarily responsible. You’re further down in the chain of ownership. And we know that you didn’t manufacture or distribute PFAS.
Clarice: That helps. Okay. Because that was also. I had the same thoughts for the last two categories, which is publicly owned airports and local fire departments. And lastly, farms, where biosolids are applied to the land. And I was thinking, you know, in those spaces, they have to, again, bring in these, you know, products, chemicals, materials, whatever that have pfas and m, what is happening there? But that idea and that understanding of they’re not creating it, they’re not adding to it. This is just sort of being kind of end of the river makes more sense now.
Marisa Desautel: Yep. Yep.
PFAS is in fire fighting foam; Rhode Island fire departments are getting rid
And the firefighting, exemption is very interesting to me. my fiance is a providence fireman and. Hello, Messer Street. I know they listen to the podcast. how do you. PFAS is in fire fighting foam.
Clarice: Yeah.
Marisa Desautel: So I know that the, at least in Providence, the fire, departments have been slowly getting rid of the foam that had PFAS in it. And I think that just means they, they return it to the state and they get a new kind of firefighting.
Clarice: Okay. There is an alternative.
Marisa Desautel: So they’re doing their best, even though they’re not required to right now, they’re doing their best to make that switch out. But I, when I first heard about this, pfas being regulated under Cercla, I was like, oh, my God, you’re going to have all these firemen subject to strict liability. They’re out there trying to put out a fire, and they’re spreading pfas. But thank God, state law and this enforcement discretion is saying, hey, firefighting, is paramount importance. It’s security. So if you’re using, if you’re deploying pfas, we’re nothing. Going to cite you.
Clarice: My concern was, you know, I’m imagining that, you know, I’m imagining that fire departments are going to use what’s effective and safest.
Marisa Desautel: Yep.
Clarice: and if that just so happens to require the pfas, I’m thinking, you know, the idea of that paramount responsibility for safety beats it. What’s happening there? Is there even the option for an alternative? So it’s kind of. It’s nice to hear that there is an alternative out there.
Marisa Desautel: I. Yep.
Clarice: And, you know, fits in everything. Let’s.
Marisa Desautel: It’s bad.
Clarice: Let’s make sure they’re safe. Too. As safe as they can be.
Marisa Desautel: And there, as it turns out, I’ve learned that, the majority of the gear that firemen wear, at least in Rhode island, the inner lining of the coats and the pants, and that heavy stuff that they have to wear is lined with PFAs. So, these guys are putting pfas directly on their skin every day and.
Clarice: Then running to save everybody?
Marisa Desautel: Yes.
Clarice: Can we call to action? Can some scientist and textile enthusiast come up with something else to help people?
Marisa Desautel: Well, they already are, because if, you think about it, the companies that are producing pfas are the first line of attack for EPA’s enforcement. So they’re already figuring, out what else to use instead of PFAS material. So that, that part is good. But I mean, it’s been used since the 1940s. We’re all. Yeah, we’re all full of it. And, and who knows what the long term. I mean, we know what the long term repercussions are, but really, you know, it’s kind of like smoking cigarettes, you know, you know, the warning. But truly the long term impacts are. Are yet to be seen.
Clarice: Here I was just thinking that. I was like, oh, it’s like you’ve smoked for 20 years and you decide, you know, I’m going to quit. Quit now.
Marisa Desautel: Yep. You just found the surgeon general, just told you it’s bad for you and you’re quitting today, but you’ve got 60 years of history with it.
Clarice: Well, all right, I guess, you know, I’ve learned something. That’s my takeaway. I’ve learned today. I’m still a little bummed.
Marisa Desautel: Yeah. Well, it’s good that I was shocked and also appreciative that I heard the, the us government was gonna treat pfas as a CERcLA contaminant, because to me, CERCLA is. CERCLA is my favorite statute. CeRcLA is strict, liability and joint and several liability. It’s kind of the fuck you statute in environmental law because these pollutants are so detrimental. CErcla says, we don’t care. We don’t want to hear your lame ass reasons about why you shouldn’t have to pay a penalty and why you shouldn’t have to undertake remedial activity. You’re going to undertake it. And we’re, as a federal government, we’re going to pay for it, and then we’re going to seek reimbursement from you. That’s the power of CERCLA. And so I was excited to see this contaminant listed. And I was also curious about how they were going to go about enforcing. And so this seeing this enforcement document, was. I don’t know. It’s exciting to me. And let’s see, the enforcement document is dated April M 19th, 2024. So it’s not that old. We’re still seeing the rollout of the actual enforcement. And it could be that. I want to do an update on this topic.
Clarice: Hey. Yeah, I mean, it’s just came out, so we got to see what it looks like in practice and how it works.
Marisa Desautel: That’s right.
Clarice: But that being said, if you have any thoughts, comments, reactions to this, reach out to us. We are on Facebook, Instagram, and Twitter at Desautel Browning Law. If you want to send us an email, you can email us at ah, Marisa
Marisa Desautel: At Desautel browning.com.
Clarice: Nice. And we’ll put this, article or this policy, letter that we keep referring to. We’ll throw it in the show notes. So that way, if you want to give it a skim or sit with it, you can.
Marisa Desautel: Yep. And if you have any questions about it, if you’re, If you’re an attorney or a private entity or a municipality that is listening or reading the document and you have a question, I’m a geek for this. I love it. So please get in touch. It’s my favorite statute.
If you’re in need of an environmental attorney, call us
Yep. Thanks, everybody.
Clarice: Thanks. Have a good one.
Speaker: Thank you for listening to this episode of environmentally speaking. If you’re in need of an environmental attorney, we are here to help. Call us at 401-477-0023 or visit our website at www.desautelbrowning.com.
