Preparing for Emerging Contaminant Liability and Administrative Law Challenges

Gov. Ron DeSantis signed a law requiring the Florida Department of Environmental Protection to create drinking water standards for two harmful chemicals by 2025. The U.S. EPA also lowered the acceptable levels for these chemicals. This could lead to legal challenges for the DEP in how they implement the new laws. The EPA wants to designate PFAS as “Superfund hazardous substances,” which could mean new rules and regulations for reporting and dealing with these chemicals. This could affect many parts of the government and private businesses and may lead to legal challenges and disputes. The EPA is designating PFOS and PFOA as hazardous substances, which means they will now be regulated and cleaned up at contaminated sites. This will also affect the Florida Department of Environmental Protection’s cleanup programs. DEP will have to follow EPA’s regulations, but they may also create their own standards if they are just as protective. Any new rules by DEP can be challenged through legal procedures. Companies in many different industries could face a lot of trouble if they are found to have released PFAS chemicals into the environment. These companies could be held responsible for cleaning up the pollution, even if they didn’t mean to cause any harm. This is because of a law called CERCLA that holds polluters accountable. The law can make one company pay for the whole cleanup, even if other companies also contributed to the pollution. In Florida, companies may have to pay based on how much they are at fault for the pollution. This could lead to a lot of legal battles to figure out who is to blame for the pollution. In Florida, the strict liability rules of CERCLA (a law about cleaning up hazardous substances) could be tricky because property ownership changes often. This means it is not clear who is responsible for cleaning up hazardous substances on a property. A court case in California said that the person responsible is the one who owns the property when the cleanup costs are paid, not the one who owns it when the lawsuit is filed. This is important because it means someone who buys a property after its already been cleaned up shouldn’t be responsible for the cleanup costs. But in Florida, it is still unclear how courts will decide when the original owners are no longer around to pay for it. In 1986, the government made it a permanent rule that they can reopen cases related to cleaning up hazardous waste. If there’s a risk of PFAS being in the water or soil, the government can reopen settled cases to deal with it. In Florida, the state also includes a rule like this in their cleanup cases. This means that if new chemicals are found or the situation changes, the government can reopen the case. The state hasn’t said yet how they’ll handle this for PFAS, but they could reopen a lot of cases to deal with it. The Environmental Protection Agency (EPA) has announced a zero cleanup standard for PFAS, harmful chemicals found in water and soil. This means that sites being assessed for contamination may need to change their approach and technology. To avoid high cleanup costs, responsible parties can use a provision called a Technical Impracticability Waiver, or invoke a Florida law to protect citizens from harmful exposure. A Phase I Environmental Assessment is often required for real estate transactions in Florida to avoid liability for contamination. PFAS will soon be designated as hazardous, changing the assessment standard. Properties with PFAS contamination will face more scrutiny during transactions. EPA and DEP are working on making PFAS a hazardous substance under CERCLA, which could have big impacts on businesses, local governments, and property owners. This could lead to a lot of legal battles and challenges. Florida has new legislation on this issue, and it is unclear how that will play out. People in Florida need to pay attention to what is happening and be ready for potential legal fights.

Source: https://www.floridabar.org/the-florida-bar-journal/preparing-for-emerging-contaminant-liability-and-administrative-law-challenges/