EPA Designates Two PFAS as CERCLA Hazardous Substances and Issues Discretionary Enforcement Policy for Certain Passive PFAS Receivers

On April 17, the U.S. Environmental Protection Agency (EPA) announced the designation of two of the most widely used per- and polyfluoroalkyl substances (PFAS) (perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The EPA’s action subjects releases of PFOA and PFOS to CERCLA’s liability scheme requiring liable parties to investigate and remediate such releases and likely will trigger new CERCLA cost recovery and contribution litigation. In addition, PFOA and PFOS releases in quantities greater than one pound over 24 hours are subject to the release reporting requirements under both CERCLA and the Emergency Planning and Community Right to Know Act. Regarding CERCLA liability unless an exception or liability protection applies, strict liability may attach to facility owners and operators of a facility (“facility” including any site or area where PFOA or PFOS has been deposited, stored, disposed of, or placed, or otherwise come to be located), persons who arranged for the transportation, disposal or treatment of PFOA or PFOS at the relevant site, and persons who transported PFOA or PFOS to the site.

However, on April 19, the EPA issued a PFAS Enforcement Discretion and Settlement Policy Under CERCLA indicating how the EPA intends to apply its enforcement authority under CERCLA. For certain entities that typically passively receive PFAS, the EPA’s policy indicates that the EPA “will focus on holding responsible entities liable who significantly contributed to the release of PFAS into the environment, including parties that manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.” Despite this focus, the EPA also clarified that it does not “intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA.” These entities include but are not limited to: (i) community water systems and publicly owned treatment works; (ii) municipal separate storm sewer systems; (iii) publicly owned/operated municipal solid waste landfills; (iv) publicly owned airports and local fire departments; and (v) farms where biosolids are applied to the land. For these entities, EPA “can use CERCLA statutory authorities when appropriate to enter into settlements that provide contribution protection from third party claims for matters addressed in the settlement.”

For further information or assistance regarding issues related to CERCLA, or PFAS more generally, contact Stephen A. Campbell or Mark Steger.

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