February 4, 2023

Volume XIII, Number 35

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EPA hit a PFAS speed bump at the White House Office of Management and Budget but don't expect a detour!

EPA has been cleared by the White House Office of Management and Budget to list two of the hundreds of chemicals collectively known as PFAS as "hazardous substances" under the Federal Superfund statute.  This is one of the first milestones on EPA's PFAS Road Map and EPA had hoped to reach it last spring.  Once final, this listing will pave the way for PFAS clean up and cost recovery under Federal law from coast to coast and beyond.

OMB is requiring EPA to conduct a Regulatory Impact Analysis of the new PFAS listing, having made the uncontroversial finding that it will impose costs of more than $100 million per year.  EPA could have added at least a few zeros to that figure and the conclusion would have been the same.

The fact of the matter is that, despite admirable progress by EPA on many PFAS fronts, and even faster (though not necessarily as well thought out) progress by many states, PFAS continue to be used in many products today and therefore continue to be released to our land, waters, and air.  Cleaning up all of those PFAS will cost tens, if not hundreds, of billions, not millions, of dollars.   

Smart consumers of PFAS are most certainly already following the first rule of holes (stop digging) and ending their use of the irretrievably stigmatized "forever chemicals."  The manufacturers of PFAS, and the many responsible under the broad reach of the Federal law for their release to the environment, are already feeling the pain associated with their status and the first listing of PFAS as "hazardous substances" means that pain is only going to get worse.

"...when OMB cleared the proposed rule Aug. 12, the office changed the designation to “economically significant,” a label that means the rule is expected to impose costs of $100 million or more annually, and, per Executive Order (EO) 12866, triggers an RIA, which includes assessing both direct and indirect costs, an industry expert says."

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 235
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About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer
Member

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.

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617-348-1711
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