According to the EPA, its PFAS enforcement efforts will primarily focus on manufacturers, federal facilities and other industrial parties whose actions “contribute to or result in” the release of a “significant amount” of PFAS into the environment.

On September 6, 2022, the U.S. Environmental Protection Agency (EPA) issued its proposed rulemaking to designate certain per- and polyfluoroalkyl substances (PFAS) as Hazardous Substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which would have a significant legal impact across the country and create potential liability for PFAS release and/or contamination for a broad set of entities in numerous industries. Accordingly, the EPA has been developing an enforcement discretion policy and recently concluded two public listening sessions to seek stakeholder input on concerns about CERCLA enforcement for PFAS contamination. The EPA will review and consider the input received as it finalizes the CERCLA PFAS enforcement discretion policy.

According to the EPA, its PFAS enforcement efforts will primarily focus on manufacturers, federal facilities and other industrial parties whose actions “contribute to or result in” the release of a “significant amount” of PFAS into the environment. At the same time, under its policy, the EPA currently intends to use its discretion to exempt from enforcement certain parties that may be otherwise liable under CERCLA’s strict liability framework for PFAS contamination. These exempt parties are:

• Community water utilities and publicly owned treatment works (POTWs)
• Publicly owned/operated municipal solid waste landfills
• Farmers using land application of biosolids
• State, tribal and municipal airports
• Local fire departments

The listening sessions did little to illuminate exactly what might qualify as an action that contributes to or results in a release of a significant amount of PFAS, but EPA did indicate it is also developing equitable factors to determine whether to exercise its enforcement discretion on a case-by-case basis. These equitable factors may include considerations such as whether a potentially responsible contractor “acts in the shoes” of a state entity, whether an entity performs a public service and the degree of culpability for the Potentially Responsible Party (PRP). (In fact, the EPA is interested in commentary on potential factors and parties that should be considered under this policy.) Lastly, the EPA acknowledged that this enforcement discretion policy would have several limitations. The most obvious limitation is that this enforcement discretion policy would be limited to enforcement actions under CERCLA and cannot be applied to other EPA statutes or programs. Further, this policy cannot restrict the EPA’s ability to address releases or conditions that pose an imminent and substantial danger to the environment and public health.

Throughout the listening sessions, the conceptual enforcement discretion policy was generally received positively, but even stakeholders not in the EPA’s crosshairs still voiced concerns. Predominantly, both private and public stakeholders in the wastewater treatment and solid waste disposal industries expressed concerns that this enforcement discretion policy does not provide adequate legal protections from the potential consequences of listing PFAS as Hazardous Substances. This is due to the strict liability framework under CERCLA coupled with the ability for third parties to bring claims directly against PRPs, including states, tribal entities, citizen groups and other PRPs. As waste water treatment plants and solid waste disposal facilities are typically passive recipients of PFAS contamination―meaning that while they do not actively produce, use or manufacture PFAS chemicals but rather act as a “pass-through” operation―the nature of these industries may cause or contribute to the unintentional spread of this contamination. Because CERCLA is a strict liability statute, the lack of intent is irrelevant in a CERCLA action. Accordingly, these stakeholders have asked the EPA to consider providing additional legal protections to insulate them from such liability.

While the public listening sessions have concluded, the EPA is still currently accepting written input by March 31, 2023, to aid them in developing the enforcement discretion policy.

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